When a federal judge blocked the Trump administration from accessing Treasury Department information this week, Vice President JD Vance noted that “judges aren’t allowed to control” the president’s “legitimate power.”
This, we are told by hysterics, has plunged the United States into a “constitutional crisis.” However, Vance is, of course, entirely correct that it’s illegitimate for activist judges to dictate how the executive branch governs itself. It’s certainly not a constitutional crisis for an administration to seek emergency relief from a partisan injunction. Presidents have done it on numerous occasions.
And any higher court that takes the Constitution seriously will smack down these assaults on separation of power by judges, tout de suite. If none do, then we have ourselves a constitutional crisis.
Then again, if the Left’s alarms were legitimate and genuine, it has zero moral authority to decry abuse after spending nearly two decades deliberately trashing the separation of power. The Democratic Party has been a walking constitutional crisis.
Take the New York Times, which is leading the charge on the “constitutional crisis.” The outlet has spent years running columns championing the need to “reform” or trash our antiquated Constitution. Now, the paper is demanding courts suddenly uphold the founders’ vision of governance? Well, I assure you not one of them envisioned a federal government agency funding a “transgender comic book” in Peru or dictating the kind of straw one can use.
It was only a few weeks ago that former President Joe Biden tried to post an amendment to the Constitution. Instead of mocking a failed president’s break with reality, Democratic senators and an array of left-wing groups, including the American Bar Association, praised him. The same ABA, incidentally, just wrote a scathing letter criticizing the Trump administration’s “dismantling” of the U.S. Agency for International Development.
Many of the people who feigned horror at the president auditing departments under his purview were quite happy when former President Barack Obama ignored Congress and unilaterally bestowed millions of illegal immigrants with amnesty. Obama also ignored Congress and SCOTUS on immigration law, and then repeatedly ignored the courts on his signature law, Obamacare, as well as on recess appointments.
“When Congress won’t act, this president will,” one of his aides famously bragged. It was Obama-era Democrats who normalized the modern imperial presidency.
And today, many voters, seem convinced that a nonexistent “popular vote” empowers presidents with nonexistent ”mandates” to rule as a king. Thanks, Obama.
Remember when Harvard constitutional law professor Mark Tushnet offered the faux legal rationalization for the Biden administration to ignore the “MAGA court” and implement “popular constitutionalism?” Does Trump also have a license to do anything he pleases because he won the “popular vote?”
Democrats now contend an activist district court judge should be able to micromanage the White House’s hiring decisions. Only recently, though, they were pushing Biden to ignore the Supreme Court and “forgive” billions of dollars in existing loans by decree. He did.
“The Supreme Court blocked it, but that didn’t stop me,” Biden bragged. Not one Democrat, as far as I can tell, decried this flagrant circumvention of separation of powers.
Then again, the Left has spent the better part of two decades destroying the legitimacy of the “unelected” Supreme Court, the only institution in American life that is more or less still functioning properly.
It began with Obama’s unprecedented public disparagement of the court for upholding the First Amendment in Citizens United. Soon, the Left was engaged in a concerted big-dollar “dark-money” effort not to only smear justices but to convince a large swath of constituents that the institution was a threat to “democracy.” (They say it like it’s a bad thing.) By 2024, the mainstream Left had embraced the authoritarian idea of court packing.
What happened to the campaign to add justices, by the way? What happened to the Democrats’ efforts to “reform” the filibuster? I guess we’ll have to wait until the next time a Democrat wins the White House to hear about how the procedure is a relic of Jim Crow. Because the Left’s newfound respect of separation of powers is also a matter over consequentialism, not constitutionalism.
It was only a few years ago that Senate Minority Leader Chuck Schumer, now extraordinarily alarmed about the constitutionality of DOGE, was imploring Biden to take emergency powers over climate change and hand the entire economy over to an unelected administrative state. So, spare us your fake indignation.
For decades, the threat of mutually assured political destruction led both parties to guard governing norms to some extent. Once the Left had control of the administrative state, it believed no matter what norm it broke, federal agencies would continue the mission, even if Republican presidents won.
Today we’re supposed to be horrified that Elon Musk wasn’t elected directly by the people. There is virtually no aspect of life that unelected heads of the administrative state agencies haven’t tried to control over the past few years. Your cars. Your stoves. Your school bathrooms. And that’s really why Democrats are so freaked about USAID being audited and scaled back. Their power is vested in these institutions.
Now, even if you believe that USAID — or whatever agency is next in line — does some good work, as I do, there’s little doubt it was also a slush fund for parasitic non-governmental organizations that spread progressive social science quackery. If all this activity was above board and supported by voters and Congress — and democratic— the place wouldn’t be run with the secrecy of the CIA.
There’s nothing unconstitutional about the president firing executive branch employees who serve at his pleasure, creating more transparency, or cutting spending that isn’t explicitly authorized by Congress. And, in fact, presidents have promised to do as much for decades and failed.
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Though, Republicans should remember that any countermarch through the institutions will only stick long-term if Congress passes laws that limit the power or shut down agencies such as USAID or the Department of Education — and hopefully others. MAGA likes to point out that USAID was created by an executive order, which is true. However, Congress has passed numerous bills since funding the agency. The Department of Education wasn’t created by Jimmy Carter, as people often contend, but by a law signed by the president. It should be undone the same way, or the next Democrat administration will quickly reactivate the leviathan.
As for Democrats, it’s the easiest thing imaginable to stand up against executive abuses (real or imagined) when you’re out of power. No one believes you. And if there’s a genuine constitutional crisis in the next few years, you will deserve plenty of the blame.