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**JANUARY 29, 2025**
On the Prospect website
[link removed] Elon Musk Offers Federal Workers an Unauthorized Buyout [link removed]
The alleged eight-month 'deferred resignation' contradicts federal rules. BY DAVID DAYEN
Trump Almost Deleted Medicaid [link removed]
These are not bright guys, and things got out of hand. BY RYAN COOPER
What [link removed] Was America's Top Spy Hiding?
Avril Haines ran cover for the CIA's domestic surveillance. Who could possibly be worse? BY DANIEL BOGUSLAW
The Texas Model [link removed]
Wealthy oil and gas interests getting politicians to do their bidding: coming to a federal government near you. BY TONI AGUILAR ROSENTHAL
Kuttner on TAP
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**** Can We Count on the Supreme Court?
That will depend on whether two justices, Chief John Roberts and Amy Coney Barrett, are offended by a whole new level of dictatorial overreach.
President Trump's over-the-top executive orders are being challenged by lawsuits, many of which will end up before the Supreme Court. Can we count on the Court to serve as a constitutional check and balance?
The Republicans have a 6-3 majority who generally favor strong executive power, but Trump's autocratic moves are in a whole new category. As Nancy Gertner, a retired federal judge who teaches at Harvard Law School, puts it, "Will they look at the sum total and say, wow, this guy is trying to become a dictator?" That remains to be seen.
The one case Trump is almost certain to lose is his effort to revoke birthright citizenship as guaranteed by the 14th Amendment. The language of the amendment could hardly be clearer and it leaves no wiggle room. The legal scholars I spoke with expect the high court to overturn Trump's move, 7-2, and maybe even 9-0.
But the other executive orders, however outrageous, are much harder to handicap in terms of how justices might vote. Chief Justice Roberts on occasion has been willing to challenge excessive assertions of executive power (though his ruling giving the president virtually blanket immunity from criminal prosecution does not inspire confidence).
The other justice who has shown signs of independence, sometimes voting with the Court's three liberals, is Amy Coney Barrett, occasionally joined by Brett Kavanaugh. However, Barrett's style is to limit overreach on fairly narrow procedural or technical grounds. How will she vote when the context is a wholesale assault on the Constitution?
For instance, when the Court majority voted to grant a sitting president immunity from criminal prosecution, Barrett partly dissented [link removed] to argue that in some cases outside the president's core duties, a prosecution could go forward. And last year, when the Republican National Committee brought suit seeking to disqualify Arizona voters who did not have newly approved state ID, Barrett voted with Court liberals to require that no existing registered voters be dropped from the rolls.
Among the dozens of Trump executive orders being challenged by litigation is the OMB directive freezing trillions of dollars in federal spending. This was sufficiently damaging that a federal district judge issued a temporary restraining order reversing the freeze for two weeks. This morning, OMB, having partly modified the directive yesterday, caved entirely and rescinded the whole order [link removed].
[link removed]
This is the Trump strategy-try dozens of ploys, sow confusion, see what sticks to the wall, and make strategic retreats as necessary. In this case, the retreat was more the result of a broad public outcry than court action.
OMB contended that the freeze was necessary to ensure that all federal spending is consistent with the president's priorities. But that's not what the Constitution provides. The Constitution makes clear that Congress appropriates all funds. When President Nixon tried what he called "impounding" outlays, Congress passed the Impoundment Control Act of 1974 requiring concurrence of both houses, and then the Supreme Court, in Train v. City of New York [link removed] (1975), effectively removed the presidential power of impoundment entirely.
That would seem to be settled law. But how might this Supreme Court vote on Trump's freeze? You can imagine Barrett splitting hairs and arguing that money appropriated by Congress must be spent but that the president has broad discretion over
**when**the funds are to be spent.
There could also be litigation charging breach of contract. The OMB freeze order explicitly required agencies to "cancel awards already awarded [link removed] that are in conflict with Administration priorities." But under several of Biden's industrial-policy programs, private companies have invested billions based on the commitment of a government match. Trump's suspension of, for example, federal funds for offshore wind projects will lead to private-sector losses.
What about Trump's patently illegal dismissal of 18 inspectors general? The law requires the executive branch to give Congress 30 days' notice, and to specify cause. If the Court wanted to play cute, they could require that the White House go back and give the notice and state the cause, and then complete the firings. It's the equivalent of a five-yard penalty for an illegal offensive shift that utterly fails to slow down a touchdown drive.
On Tuesday, two organizations, Democracy Forward and Public Employees for Environmental Responsibility, filed [link removed] a lawsuit to block Trump's executive order that strips employment protections [link removed] for tens of thousands of federal workers-creating a Schedule F that makes it easier to fire them for political disloyalty. Trump tried the same stunt late in his first administration, but it was never carried out. Congress subsequently passed legislation strengthening civil service protections.
You would think that the Court would find Schedule F to be a clear violation of law. But as Gertner says, "At best, Barrett and Kavanaugh are proceduralists. In some cases, they will find technical reasons to dissent and occasionally to vote with the liberals. Otherwise, they defer to executive power."
Trump's strategy of flooding the zone means that even if some of the more floridly illegal orders are blocked, others will still wreak havoc. However, there is one respect in which flooding the zone could backfire. The Supreme Court's crowded docket, as Gertner points out, cannot possibly accommodate all of these legal challenges to Trump's dozens of executive orders.
The Court will have to pick a small fraction of cases to accept on appeal. Since most of these lawsuits are being filed in relatively liberal circuits, the high court may end up not taking those appeals and letting some of those rulings stand.
~ ROBERT KUTTNER
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