Tornado Alley (PROG)

[arizona1]

Ever since Ronald Reagan, conservatives have been plotting to advance a constitutional theory of government that made the president all powerful. Called the unitary executive theory, it argues that the president — and the president alone — exercises all executive power of the federal government. As Russ Vought wrote in Project 2025:

That enormous power is not vested in departments or agencies, in staff or administrative bodies, in nongovernmental organizations or other equities and interests close to the government. The President must set and enforce a plan for the executive branch.

With Donald Trump’s election in 2024, conservatives thought they finally had their chance. Yet, thanks to a complete lack of discipline by Trump and his sidekick Elon Musk, it now seems possible, if not likely, that this theory will fail to gain traction in court.

Central to the unitary executive theory is the belief that the president’s power to execute the laws extends to every corner of every department and agency. In its strongest form, it limits Congress’ ability to condition or restrict that power. Whether for ideological reasons or practical ones, the one branch of government undiminished by this theory is the judiciary.

Historically, advocates of a strong presidency have also advanced activist conservative legal theory for the federal courts. By creating a strong president and judiciary, Congress — the branch most likely to respond to public pressures and election results — is diminished.

Besides, to establish the unitary executive, conservatives need the Supreme Court to consider and decide several key cases in their favor. With a 6-3 conservative majority, everything seemed poised for this to happen.

That is, until an undisciplined Trump put Musk, and his clown show, front and center.

Rather than allow a handful of targeted firings and spending holds to test his theory, Trump adopted Steve Bannon’s flood the zone approach. He put Musk in charge of the ill-defined DOGE, which resulted in recent high school graduates rummaging from agency to agency doing who knows what. Far from looking like an all-powerful president, Trump looks more like the carnival barker outside the circus tent while Musk is in the center ring.

It has not helped that the lawyers from the Department of Justice seem completely unprepared to defend these cases in court. Several times, DOJ lawyers have had to correct their previous statements because they had factually incorrect information.

The result has been a rout. Courts from all over the country have been blocking Trump’s executive orders and Musk’s efforts to disrupt the government. That includes judges appointed by Democratic and Republican presidents stretching back to Ronald Reagan and including some appointed by Donald Trump.

Still, a strategic White House could recover from these defeats and still obtain their ultimate objective by showing patience — accepting these setbacks while the cases are litigated through the appeals process and ultimately to the Supreme Court.

Instead, the administration has attacked the judges and played a game of cat and mouse with judges who expect good faith compliance with their orders. They have raised the specter of willfully defying federal court orders as a governing philosophy. They have openly questioned whether federal courts can even bind the president’s actions.

This will not end well for the Trump administration. Federal courts have the power of criminal contempt. If necessary, they can appoint their own prosecutors from the private bar. If the U.S. Marshals Service refused to enforce court orders, judges may all of a sudden find that they have the power to contract privately for that as well. There is old case law that found this power was inherent at least for Congress.

Most importantly, judges will spend the next four years deciding cases of great importance to Trump and his administration. Suggesting that federal courts are powerless in the face of a strong president is not likely going to win Trump votes on the Supreme Court in cases involving a unitary executive. To the contrary, a threatened judiciary is likely to recoil from giving the president even more power.

None of this is a guarantee that things will work out for the best. It is a very uncertain and volatile time in our nation’s history. It is possible that Trump deescalates. It is possible judges lose their nerve. It is possible that the Supreme Court, like Republicans in Congress, is too far gone to even defend its own institutional prerogatives.

But it is not certain that Trump’s empowerment of Musk and the bravado of his supporters will benefit him in the end. If it doesn't, Trump will have no one but Musk and himself to blame.
https://mailchi.mp/4be0e68e7292/nov12-tipsheet-8877815?e=3eb3e31c58