Reflections on the Election

 

These are just preliminary thoughts.  I hope to write at greater length on some, though by no means all, of them.

I don't believe this is just about inflation

By all accounts, voters listed their number one concern as the cost of living.  This far outpaced the economy and jobs, which makes sense.  The economy is in reasonably good shape -- perhaps more sluggish that it could be, but by no means in recession, and with unemployment well under 5%.  It is normal for the President's party to lose seats in the midterms.  And I get that Trump ran on lowering prices and then admitted that it was just about impossible and instead adopted policies -- tariffs; mass deportations; a stupid, senseless war in the Mideast -- that had the exact opposite effect.  But inflation was a lot higher in 2022.  It topped out at 9%.  And it was down in 2024, but people were still upset over high nominal prices.  Well, the current rate is 3.7% -- above target, but well below peak in 2022.  Yet neither 2022 nor 2024 had anything like the magnitude of this swing.  Rising inflation could account for a turn against Trump, but not for the intensity of it.  So I am inclined to believe that other factors are at work.  The ICE reign of terror, a stupid war by a candidate who promised to stay out of wars, and widespread corruption are more likely to account for the intensity of the swing.  Of course, it is also possible that it was the combination of these things that accounts for the intensity, or that different issues mattered for different people, particularly the mass deportations in Texas and the war among serious MAGA types.

Don't count on this trend to last

Every time there is a wave election, pundits treat the trend as permanent and say that this is the end for the party that lost.  They haven't been right since the Civil War.  After the 2024 election, pundits looked at the magnitude of the shift in favor of Republicans and proclaimed the Democrats finished.  I was actually afraid they might be right, not because I think trends like this continue indefinitely, but because I worried that Trump might use the powers of his office to shut down the opposition.  This election has been compared to the 1974 massive swing for Democrats in the wake of Watergate.  Well, guess what.  Six years later, in 1980, the country elected Ronald Reagan as President.  But in the meantime Congress seriously investigated serious abuses of power -- by both parties -- since the 1930's and enacted reforms to reign the executive in.  Those reforms prevented Reagan from being another Nixon.  They -- mostly -- held until Trump came along.*

If the Democrats swept into power today are able to expose what Trump has been up to and enact reforms that hold the executive in line for another 50 years, that will be a significant accomplishment.

Signs that Trump's power may be waning

1. Media outlets bought by Trump allies are willing to criticize or oppose him: I see plenty of independent journalism by CBS, the Wall Street Journal, and the Washington Post. Even Fox is becoming less subservient.

2. State Republicans defy Trump. I expect them to see their survival as depending on this.

3. Republicans in Congress splinter and Trump cannot bring them into line: Was well underway even before the election.

4. Attempts to target opposing organizations through taxes or RICO are thrown out, or never materialize: Way too early to say. But naming Stephen Miller as Chief of Staff and threats to criminalize investigations are not an encouraging sign.

5. Universities, high power law firms, and other institutions targeted by Trump start consistently defying him: I expect this to become more common with a new sheriff in town.

6. The Supreme Court makes a meaningful attempt to reign Trump in: A mixed bag.

7. Democrats win control of the House and Trump cannot stop them: Yes!

8. Democrats win control of the Senate and Trump cannot stop them: Yes!

9. Growing numbers of state and local jurisdictions reject cooperation with ICE, putting more strain on the organization: Inshallah! Also, see below.

10. ICE starts losing personnel faster than it can recruit them and begins shrinking: No. All signs point to the ICE crackdown just getting worse.

11. Big money interests start standing up to him: Big money interests are starting to hedge their bets.

12. Trump supporters stop making death threats and harassment against people who he criticizes: Ain't gonna happen.

All elections matter

Especially in Texas!  Deportation statistics are interesting.  The link shows arrests divided into "community arrests" (arrests by ICE in the community), "detainer arrests" (local law enforcement turning arrestees over to ICE) and "law enforcement related" (arrest from a law enforcement setting other than a detainer, presumably with cooperation with local law enforcement).  The link shows a decline in arrests from 2025 to 2026, but only because its numbers only go up to August.  Arrests have been increasing and will no doubt turn be higher in 2026 than 2025.  

Consider, then the four largest states:**

California	Total arrests	8,097	30,399	20,208
California	Detainer-related arrest	3,513	7,481	5,033
California	Other law enforcement-related arrests	1,438	3,568	3,097
California	Community arrest	3,146	19,350	12,078

Florida	Total arrests	10,650	35,898	28,724
Florida	Detainer-related arrest	6,510	22,249	15,855
Florida	Other law enforcement-related arrests	1,309	5,322	5,841
Florida	Community arrest	2,831	8,327	7,028

New York	Total arrests	3,999	12,070	7,657
New York	Detainer-related arrest	668	1,242	592
New York	Other law enforcement-related arrests	391	839	340
New York	Community arrest	2,940	9,989	6,725

Texas	Total arrests	33,097	83,278	53,636
Texas	Detainer-related arrest	22,093	34,386	18,128
Texas	Other law enforcement-related arrests	7,366	20,372	17,483
Texas	Community arrest	3,638	28,520	18,025

Conclusion:  The number of community arrests do not differ all that much between sanctuary jurisdictions (California, New York) and non-sanctuary jurisdictions (New York, Florida).  The difference is the willingness of state and local authorities to supplement ICE with its dirty work.***

My hope was that Democrats would win elections for Governor in Texas and Florida and withdraw State Police assistance to ICE and, in the case of Florida stop removing local officials for not cooperating with ICE (an option not available in most other states).  Winning the state legislatures and banning such cooperation seemed beyond hope.  Well, Florida failed.  But we actually flipped the Texas legislature!  And given the importance of the ICE reign of terror in Texas, it seems likely that the new government will withdraw at least State Police cooperation and may even pass sanctuary legislation.  And maybe other states as well.

Alas, ICE shows no signs of slowing down, so I think our only hope can be to slow it down by state and local police withdrawing from cooperation.  Maybe then it will eventually start breaking down under the strain.

Graham Platner, Adam Hamilton, and "authenticity"

Graham Platner in Maine and Adam Hamilton in Kansas were both candidates for Senate who had never run for office before.  Platner proved to be a disaster, while Hamilton flipped a seat that had seemed impossible.  I would say they prove the difference between real authenticity and pseudo "authenticity" and show why being a newcomer is not by itself any proof of virtue.

What appears to have happened in the case of Platner was that some leftwing political consultants decided to run against the "system," despite obviously being part of it.  To establish "authenticity" and outsider status they wanted specific traits in a candidate.  They wanted someone who had never run for office before, someone who worked a blue-collar job, and someone who shared their political views.  Edgy and offensive but not actually illegal baggage (say, a Nazi tattoo) was not essential but gave their candidate bonus "authenticity" points.  They thought they had their candidate in Platner, but he turned out to have a lot more baggage than they thought and eventually had to be pushed aside in favor of a candidate who was genuinely blue-collar and shared their views but lacked the outsider status.  In short, Platner was untainted by the prior vote of his fellow citizens, but was otherwise the creation of consultants, rather than authentically "authentic."

Hamilton, by contrast, was a Methodist minister who appears to have been appalled by what Republicans were doing in the name of Christianity and wanted to offer a very different model.  He made the decision to run on his own without the encouragement of any political insiders, consultants, or donors out of a sincere and outraged conscience.  Now that is what real authenticity looks like. 

Give me either a candidate with long history in office who is not ashamed of it and can argue the merits of a political career, or else a real outsider like Hamilton who runs as himself and not as some mashup of what consultants think "authenticity" looks like.

What in the hell happened in North Carolina and why isn't anybody talking about it? 

The two big stars of this election have been Abdul El-Sayed and James Talarico.  El-Sayed has been significant as a leftwing insurgent and a model of what the activists want to see.  Talarico was the head of the vast blue wave that swept across Texas and turned it from a state in which Republicans held all statewide offices and had an unbreakable grip on the state legislature to one in which Democrats cleared the table.  Points also to Annie Andrews of South Carolina and Adam Hamilton of Kansas who won seats that were supposed to be out of reach for Democrats.

But why hasn't anyone been paying attention to North Carolina?  Yes, I understand that Roy Cooper was expected to win.  But holy mackerel!  Not only did he win by nearly a 20-point margin, but the US House delegation appears to have gone from 10-4 in favor of Republicans to 10-4 or at least 9-5 in favor of Democrats.  And the Democrats have won a comfortable majority in the State House and come within one vote in the State Senate.  I get that El-Sayed and Talarico (and Jon Ossoff of Georgia) are young up-and-comers, while Coooper is 69 years old and probably not a potential candidate for President.  But this sounds like a serious political earthquake.  Why hasn't there been some sort of analysis of what is going on?

The Party leaders will disappoint.  They always do.

There has been plenty of clamoring among the activist wing of the Democratic Party to replace Chuck Schumer and Hakeem Jeffries with someone to their left who will finally get things done.  Haven't you guys learned anything from watching the Republicans when they held the majority?  Party leaders always disappoint the activist wing of the party.  It is in the nature of the office.  The reason leaders necessarily disappoint does not lie in the leader of the party caucus.  It lies in the party caucus itself.  Chuck Schumer will be dealing with a caucus spanning the ideological spectrum from Adam Hamilton to Bernie Sanders.  Flipping a bunch of conservative states is very much a thing to be applauded, but it necessarily means a more conservative Democratic caucus.  The party leader's job is the hold the caucus together.  That means getting support from enough of the more conservative members to actually pass legislation.  And that need will not disappear no matter who the party leader is.  

Republicans have perennially had this problem and the leaders have perennially had to seek help from the Democrats to enact must-pass legislation like an annual budget.  The Republican Freedom Caucus has perennially blamed the floor leaders for not being ideological enough instead of themselves for making unrealistic demands.  It was bad enough when Republicans did that, but at least their most ideological members didn't actually want to govern anyhow.  The more ideological Democrats presumably do.  So, please, if you don't want to end up like the Republicans, stop acting like them!

I hope to write more on that last topic, and on what I recommend for Democrats to do. 

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*I have not forgotten the serious abuses by the Bush II Administration in the wake of 9-11.  But much as those strained the 1970's reforms, they did not bring the whole system down in the way Trump has been doing.
**Unsurprisingly, the number of arrests in a state correlates strongly with its total population.
***I will say, though, I was shocked at the number of law enforcement-related arrests in my own state of New Mexico, which is supposed to be a sanctuary state.

New Mexico	Total arrests	284	3,670	2,487
New Mexico	Detainer-related arrest	104	634	343
New Mexico	Other law enforcement-related arrests	67	2,522	1,535
New Mexico	Community arrest	113	514	609

My Radical Proposal in the Real World

So much for my proposal to have President, and federal Attorney General, Treasurer, and Auditor separately elective offices.  An obvious objection presents itself.  I am assuming that the President is the sole danger to democracy and the rule of law and the others will reign him in.  What if they go rogue as well?  In particular, what if instead of reigning each other in, these four office holders all work together to achieve their aim.

Suppose (worst case scenario) that all four are elected at the same time.  And suppose that in 2024 we not only elected Donald Trump as President, but Stephen Miller as Attorney General, Elon Musk as Treasurer, and Russ Vought as Auditor.*  Presumably the four would coordinate closely, and there would be no way to stop them.  While Trump closed the border and picked fights with allies, Miller would crack down on immigrants with maximum brutality and undertake an "all of government" attempt to shut down the opposition and prosecute Trump's opponents.  Musk would arbitrarily cut off funding to any purpose he disliked and illegally divert funds to unauthorized purposes.  All would fire anyone who stood in their way.  Vought would refuse to sue for any release of funds, uphold all firings, limit his audits to investigating actions taken during the Biden Administration, and generally give suggestions to the others on how to make their undermining of the rule of law more effective.

Could anything be done about any of this, or would we be facing the same situation we have now, only worse?

Two main constraints would operation on Miller.  One would be the one in effect already -- an independent judiciary and trial by jury, which have been quite effective in stopping politicized prosecutions.  The other is my proposal not to allow any appropriation for law enforcement to extend beyond two years.  Right about now the prospect of a new Attorney General prosecuting any illegal actions by Miller and his associates might seem too remote to be much of a deterrent. (Remember no Presidential pardon for federal employees and a minimum statute of limitations of five years).  But Miller would be facing cutoff of funds if his party lost Congress.  Admittedly, Musk might make an illegal diversion.  But remember, we would also allow private suit by the lawful recipient.  And the prospect of criminal prosecution would not be all that remote.

But I do think constraints would be more effective if the four offices were not all elected at once.  Suppose the President and Auditor were elected at the same time, and the Attorney General and Treasurer were elected in midterm years.  

Given how unpopular Biden was in 2022, I would expect a Republican Attorney General and Treasurer to win.  The Republican Attorney General would no doubt be bad, but probably not as bad as Miller (not a high bar to clear, admittedly).  He/she would probably drop all charges against Trump for trying to overturn the election or stealing classified documents and generally treat all Republican politicians as above the law.  But I would not expect him/her to go as far in prosecuting and attempting to shut down opponents as Team Trump.  I would also expect the Republican Attorney General to crack down on immigration in ways that were ugly, but not as ugly as what we have now, if only because Biden would veto the funds to do it.  This might have interesting effects of another kind.  An internal crackdown on immigration might deter border crossing at least to some degree and make border chaos less of an issue in 2024.  It is hard to say.  Certainly, the Republican AG would be released from such constraints once Trump and a Republican Congress were elected and flooded immigration enforcement with money.

As for the Treasurer, it seems unlikely that Musk would win, but I could very much see Russ Vought be elected and start cutting off funds in a less flamboyant but more effective manner than Musk.  But for the first two years he would be faced with an Auditor elected along with Biden, who would presumably regularly sue to release illegally withheld funds and reject any of Vought's firings.

This would come to an end with the election of Donald Trump and an allied Auditor -- maybe Elon Musk.  Certainly, one can imagine Auditor Musk being every bit as intrusive, aggressive, and ignorant as he was in our reality.  His actions would not carry the force of law.  He could only suggest.  But other agencies might eagerly take him up on his suggestions.  Or they might not.  After all, Musk's downfall occurred when the entire Cabinet revolted against him, saying he was making it impossible to get their work done.  Musk as elective Auditor could not be fired, but he could be ignored.

And in any event, in this parallel reality Team Trump would be staring down, not just the cutoff of funds from a new Congress, but prosecution under a new Attorney General.  Admittedly, it would presumably be too late to do anything about the actions against Trump, either for attempting to overturn the election or for stealing classified documents.  But everything done from 2022 onward would be fair game -- a most alarming prospect.  As for the Treasurer, but if he/she wanted to disburse funds as required by law, neither Trump nor Musk could really do anything about it.

Only one terrifying though presents itself.   Faced with that prospect, would the Republican team be deterred from further lawlessness?  Or would they throw off the rule of law altogether and attempt a coup?

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*I have already said that I saw no need to require the other three to be natural born US citizens, so Musk would be eligible.  Admittedly, one might argue that Miller is not a lawyer or law enforcement professional, Musk is not an accountant or banker, and Vought is not an accountant, so none of them should be eligible for the office.  But I am not sure these professional qualifications would apply.  They don't seem populist.

Why We Should All Get Out and Vote Early

By all accounts, Democrats have a strong lead in early voting.  Of course, it is a mistake to read too much into that.  Democrats had a strong lead in early voting in 2024, but Republicans caught up and overtook them later on.  Trump and company have come out against early voting and are urging supporters to vote on Election Day.  Undoubtedly Republicans will do a lot of catching up this time around as well.

But I would still urge Democrats to get out and vote early, the early the better, and here is why.  Everyone is worried about ICE at the polls or some other type of coercion.  Well, the more we frontload and Republicans backload, the less incentive Team Trump will have to disrupt elections on the Big Day.  It will be their own people who are being disrupted.

 

A Radical Proposal that Stands No Chance of Passing: The Auditor and How the Departments Will Interact

 

The Auditor:  Most states have a State Auditor, also known as a comptroller, who audits departments of the government, looking for fraud, waste, and abuse.  The US has a similar office, the Government Accountability Office (GAO), headed by the Comptroller General.  The GAO is supposed to be part of the legislative branch of government and actually occupies a murky space between the executive and legislative branches.  The GAO also has the sole power under the current Impoundment Control Act to sue to release illegal impoundments. To avoid inappropriate political influence the Comptroller General is appointed to a 15 year term.  Unfortunately, that term ended in 2025, and Donald Trump has thwarted any action by refusing to appoint a replacement.  The prior Comptroller General remains in office but is unwilling to take such an action without authorization by Congress, which the Republican-controlled Congress is naturally unwilling to give.  Each US executive agency has its own Inspector General to perform a similar role, with 30-day notice to Congress required before firing.  Naturally Trump has blown past that requirement with mass firings.

So, how to prevent the President from neutering the office of Comptroller General by not appointing an officer?  Make the office elective, of course.  Many states do it after all.  Elect a National Auditor to head the GAO, with the power to sue in case of illegal withholding of funds. Allow the recipient to sue for release of funds if the Auditor fails to do so after a certain period of time (I am open to persuasion as to how long).  Consider criminal penalties for illegal withholding of funds.  Executive agencies can keep their Inspector Generals but let the Auditor have parallel offices.  The Auditor would investigate the offices of the President and the Attorney General and the Treasurer for fraud, waste, and abuse, issue reports, and recommend reforms, as is the case now.  "Abuse" would mean not just financial abuse, but all abuse of office.

Would the office have any teeth?  Certainly, it would have (as it has now) power to sue for the release of illegal withholding of funds.  Add to that power to sue to block illegal disbursement of funds.  I would give it the power, not only to make reports and recommend reforms, but to make referrals for criminal prosecution to the Attorney General if it spotted actual criminality by government officials.  Unlike the Presidency or Treasury, the Auditor could only investigate and make criminal referrals for federal employees, not private citizens.  

I would give the office another set of teeth as well.  The most dangerous decision by the Supreme Court since it held that (Republican) Presidents could not be prosecuted for crimes committed as part of their "official duties" was Trump v. Slaughter, which struck down at least some laws limiting the President's power to fire federal officials.  Slaughter gave the President unlimited power to fire members of multi-member boards.  How far this decision goes is unclear, but it has at least the potential to remove all civil service protections and make all federal employees subject to termination at will by the President.  Now consider that the Supreme Court has protected the (Republican) President from all prosecution for crimes committed in office and the Constitution gives the President unlimited power to pardon federal crimes -- including crimes he ordered!  Now add to that the power to fire any employee who refuses an order to commit a crime and the rule of law is lost altogether.   

At present, civil service protections remain in place, but any employee claiming improper firing must first take the case to the Merit Systems Protection Board (MSPS).  But the MSPS is a three-member board, meaning that Trump can fire its members and replace them with ones who can be trusted to rule in his favor!  Admittedly there is appeal to the courts, who now await the Supreme Court's decree.  I have already proposed as part of my reform that the President not be allowed to pardon federal employees.  Civil service protections should also be guaranteed as part of my proposed reform.  And the board deciding whether firings violate civil service protections should be moved to the Auditor.  This would include firings by the President, Attorney General, or Treasurer.

Interaction among the four offices:  I would give all four offices four-year terms.  Americans are used to four-year terms, and I am inclined to agree.  The number has become so pervasive at least in part because it works well.  Limits to two terms are also well-engrained, both at the federal and state levels, so they will probably apply to the other three offices as well.  The President is required to be a natural born citizen.  I see no reason to apply this restriction to the Attorney General, Treasurer, and Auditor.  Nine years of citizenship is good enough for Senators and should be good enough for the other three executive offices.  In addition to taking away the President's power to pardon federal employees, I would make the statute of limitations for all crimes by federal employees in the course of their office to five years, i.e., past the term of the current Attorney General.  That should give everyone second thoughts about taking any illegal action while in office.  

And while I hate to have to raise the issue, Elon Musk and his DOGE have made clear that IT is immensely important, maybe even to the extent of being a proper topic for my proposed constitutional amendments, and certainly important enough to include in any enabling statutes.  IT for the President, Attorney General, and Treasurer must be wholly separate, so as not to allow one to invade the domain of the other. The relatively toothless Auditor is a different matter.  The Auditor personnel should have the ability to enter the departments they are inspecting and have read-only access to records, but not the power to exclude employees of the audited agency, or to change anything in its system.  

Finally, there is the matter of staggered terms.  If all four officers are elected at the same time as part of a common slate, they can coordinate actions and perhaps collude on illegal plans. If they are too opposed to each other, it could lead to complete governmental paralysis.  One option is to elect all four offices at the same time.  Ticket splitting would be allowed, but I suspect it would be decidedly rare.  Another option would be to elect the President every four years and the other three in the midterms.  This would tend to make the other three aligned against the President and risk paralysis.  A third option would be to elect the President and Auditor (the least powerful of the four) in Presidential years and the Attorney General and Treasurer at the midterms.  Finally, one could elect one such office each year.  My inclination is to favor the third option, but I am open to persuasion.

So, I am proposing a President to handle foreign and military matters, allocation of funds within executive discretion, enacting regulations, and investigations.  The Attorney General would handle all law enforcement, criminal prosecutions, and major civil enforcement.  The Treasurer would disburse funds, decide whether disputed funds should be disbursed, and withhold funds applied to an illegal use.  The Auditor would perform audits, make reports, recommend reforms, refer public officials for prosecution, sue for the release of illegally impounded funds and to block diversion of funds to an unauthorized purpose, and determine whether firings by the other executive departments were legal.

Undoubtedly, I am overlooking problems my system would cause.  I am open to input.

A Radical Reform that Stands No Chance of Passing Continued: The Treasurer

 

My last post discussed the possibility of separating the offices of President and Attorney General.  Now on to the Treasurer.

The Treasurer:  The current US Treasury Department collects taxes, pays government expenses, manages government accounts, supervises banks, enforces tax law, and issues and enforces financial regulations.   

In many ways, the federal government's real source of power is not law enforcement, but money.  Law enforcement in the US is extremely diffuse, most of it under city or county control with no central command.  Non-federal law enforcement is not allowed to interfere with the feds, but neither is it required to act on their behalf.  Rather, state and local law enforcement step aside and do nothing with respect to federal law.  In that case, the big restriction on federal law enforcement would be the lack of personnel.  That is why all elections matter.  And selective attempts to criminalize the opposition with bogus prosecutions would be constrained by an independent judiciary and trial by jury.  

But the federal budget is immense.  Most of the federal budget takes the form of payments to individuals or organizations, whether through transfers, contracts, loans, grants, or the like.  Countless individuals, non-profits, local governments, etc. rely on federal funding and would be devastated if it were withdrawn.  This was what Elon Musk attempted to do.  It continues, albeit on a less dramatic scale and in a less flamboyant manner.

I would essentially limit the Treasurer to collecting and disbursing money.  Issuance and adjudication of financial regulations would remain with the President, and enforcement of financial regulations would rest with the Attorney General.  The Treasurer would continue to be in charge of tax collection.  After all, the Treasurer can't disburse funds without first collecting them.  So, the Treasure would not only collect taxes but would continue to do tax audits and simple civil tax collections, and to determine which organizations are entitled to tax-exempt status, with all existing restrictions intended to prevent abuse still in place.  As for criminal cases, the existing system would continue.  The Treasurer would investigate tax crimes, and the Attorney General would prosecute them.  

But the real change would be in the disbursement of funds.  The purpose of separating the Treasurer from the larger executive would be the same as separating the Attorney General.  Just as a separate Attorney General is intended to limit lawless prosecutions, a separate Treasurer is intended to prevent lawless withholding of federal money.

Under the Impoundment Control Act, if the President does not want to spend money appropriated by Congress, he must notify Congress.  The money will be held for 45 days.  At the end of that time, the funds must be released unless Congress rescinds payment.  Under the new system, the President would give such notice to Congress and the Treasurer.  If Congress does not rescind the payment, the Treasurer would be required to releasee the funds.  Without such notice, release would be automatic.

Then there is the matter of the use of federal funds as a means of coercion.  Congress determines the general rules of how federal funds are to be spent, but executive agencies have significant discretion within the limits of their budgets.  Individuals or organizations seeking federal contracts, grants, loans, reimbursements, etc. apply, not to the Treasury, but to the specific federal agency and the agency, not the Treasury, makes the payment.  Federal funds are, quite properly, conditional on various terms.  The ability to claim that conditions have not been met and withhold funds is an immense source of leverage.

The best-known recent example involves Trump's showdown with universities.  It is clear that during the Gaza protests, many universities allowed the protesters to engage in behavior that was inappropriate at best and illegal at worst.  Recipients of federal money may not engage in racial or ethnic discrimination.  Universities were allowing protesters to engage in such discrimination against Jews.  Withholding federal money might be appropriate, but subject to strict conditions. Termination of funds requires "an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement."  Furthermore:

[S]uch termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.

Notice must be given to the recipient; it must be determined that compliance cannot be secured by voluntary means.  A report must be filed with relevant Congressional committees, and withholding cannot take place until 30 days after the report is filed.  Needless to say, the Trump Administration has ignored all of these requirements.  And there have been other withholdings of funds as a means of political retaliation or coercion.  And there have been all manner of bizarre rules and regulations attached to grants that are cutting off funding from uncontroversial programs, such and cancer and Alzheimer's research.  Trump has also engaged in grossly inappropriate fund shifting to circumvent attempts to limit his activities.

What can be done about all of this?

I would do much the same with federal money as I proposed with federal law enforcement.  Just as an independently elected Attorney General would hold separate the enforcement of laws and regulations from issuance and adjudication of regulations, an independently elected Treasurer would separate spending decisions from disbursement of money. Congress would appropriate funds.  Executive agencies under the office of the President would make decisions about who should receive grants, contracts, etc. in accordance with the President's policy preferences.  The Treasury would actually disburse the funds. If a federal agency under the control of the President wishes to disburse money in the form of a grant, contract, loan, etc., it would notify the Treasurer, and the Treasurer would make payment.  Most of the time this would be routine.  

If an executive agency believed there was a good reason to deny a payment (such as fraud) or a good reason to cut off an ongoing grant or contract (see the university situation, for instance), it would notify the Treasurer and give the justification.  The recipient could then challenge the withholding.  The Treasurer would have an administrative adjudicator to decide whether the withholding was legally justified and disburse if it finds the withholding is not justified, presumably with appeal to the courts.  If the executive agency attempts to bypass this arrangement by simply not notifying the Treasury of the payment to be made, the recipient could make a claim with the Treasury and go through the same process.  

If any executive agency seeks funds for an unauthorized purpose, the Treasurer could withhold the funds and the agency could challenge the withholding in court.  (Not with an administrative adjudicator because the Treasurer would be a party).  I understand that federal agencies have to have some degree of flexibility in the use of funds and some ability to move them around and would be hobbled if they had to go to the Treasurer for every expenditure, no matter how minor. Without claiming and special knowledge on the subject, if other agencies can have limited enforcement power, while leaving criminal prosecutions and large-scale civil actions to the Attorney General, it should also be possible to allow executive agencies to internally transfer funds up to a certain amount (I have no idea how much) and have to go to the Treasurer for larger amounts.  The restriction would apply to banks and other financial institutions as well as government.  Thus if an agency were to attempt to make a payment exceeding the authorized amount, the bank would refuse.  Attempts to evade the limit by a large number of smaller transfers could be prosecuted as structuring.  (Remember, the President would not be allowed to pardon members of the executive branch and the statute of limitations exceeds the current Attorney General's term).

What if the Treasurer illegally shifts funds for an unauthorized purpose?  The lawful recipient could bring an action to block the illegal use and pay the funds to their rightful recipient.  (This would also go directly to the courts, since the Treasurer is a party).  Also, such illegal payments could be prosecuted by crimes, if not by the current Attorney General, then by the next one.

Finally, the executive will no doubt have significant discretion in issuing new grants, contracts, and the like.  The current Administration has made some insane rules, such as having a computer scan all applications and eliminate any that contain "woke" words.  I don't claim to know how much of this is illegal and how much is merely bad policy.  The Treasurer could only withhold or be compelled to disburse funds in case of actual illegality.  Having bad policies is part of the President's prerogative and the proper remedy is at the ballot box.

Admittedly, all of this makes the Treasurer's role look mostly ministerial.  The Treasurer's policy-making authority would be quite limited and mostly adjudicatory, i.e., deciding whether requests for funding or denials of funding are legal and complying or not complying accordingly.  I do think that all of these things could probably be achieved by internal and statutory reforms to increase the independence of the Treasury Department.  But given the disposition of MAGA types these days, they would probably dismiss any sort of Treasury independence as machinations of the Deep State.  Making the Treasurer elective is a protection against such accusations.

A Radical Reform that Stands Zero Chance of Passing, that I Nonetheless Put Out There for Your Consideration: The President and Attorney General

 

Again, being optimistic and assuming Democrats can resume power some time, what sort of reforms should they institute?  Later on I hope to discuss statutory reforms that Democrats could pass, although they would probably have to eliminate the filibuster to do.  And I will talk about constitutional amendments that I would favor, even though they have no chance of passing.

But here I want to propose a radical reform that stands zero chance of passing, but that I want to offer as a thought experiment.  

There is simply no disputing that the executive has grown far beyond what anyone in the 18th Century could have imagined and has become dangerous.  And yes, I get it that libertarian-style right-wingers would say that we should shrink the executive and bring it back in line with what the Founders wanted.  But restoring an 18th Century executive in this day and age is simply not practical. No country anywhere in the world has an 18th Century-sized executive, nor do the people of any country, our own included, want such a thing.

Parliamentary systems handle the danger by wholly subordinating the executive to the legislature.  And there has been talk of moving in the direction of a more parliamentary system, for instance, by allowing multi-representative districts in hopes of reducing polarization.

But parliamentary systems are foreign to the American experience and unlikely to be appealing for that reason.  No state anywhere in the US has a parliamentary system.  And honestly, after watching the House of Representatives deadlock on choosing a Speaker and acting like a parliament (i.e., being able to remove its leader by simple majority vote and not having clear rules on who takes his place), I can see why.

So let me propose an all-American system, practiced in many US states but not (so far as I know) in any other country.  After all, if there is one thing Americans love, it is multiplying elective offices.  So, if so many of our problems are caused by the "unitary executive," and if a parliamentary system is unappealing and un-American, why not do what US states do and eliminate the unitary executive.  Have multiple elective executive officials instead.

Consider the executive officials who are elective in state government:

It seems no exaggeration to say that most Cabinet-style posts are independently elective in at least some states.  I don't think we need anything like that at the federal level. The trouble with having too many elective offices is that they become mind-numbing and keeping up with all of them is more work than even the most hardcore political junkie would care to do.  We don't want that to happen at the federal level.  At the same time, giving a single officer authority over the entire executive branch is clearly not safe.  

It seems to me that the most dangerous powers of the Federal Government, aside from the military, of course, are law enforcement, money, and administration (see Elon Musk).  So, I propose four federal elective executive officials -- the President, the Attorney General, the Treasurer, and the Auditor.  The Attorney General would be in charge of law enforcement.  The Treasurer would collect taxes and disburse funds.  And the Auditor would be a sort of supreme Inspector General, inspecting the entire federal government for fraud waste and abuse and taking actions to curb it.

The President:  So, what would that leave to the President?  Well, first and foremost, the President would still be commander-in-chief of the armed forces and would be in charge of all military and foreign policy matters (with strict constraints on deploying the military domestically), and foreign intelligence.  He would continue to be the sole executive official with the veto power or the power of pardon, subject to the restriction that he could not pardon executive officials.  The President would also continue to nominate federal judges and to preside over all executive departments not spun off into one of the other three elective departments, i.e., the "service ministries."  A major part of the executive's job is making decisions on allocation of funds within the limits set by Congress, such as decisions on contracts, grants, and the like.  Agencies controlled by the President would continue to do that, subject to oversight by the Treasurer.  (More on that later).  The President would remain in charge of most economic policy and most regulatory bodies.  (More on that below).  And the President would make executive appointments to all executive agencies remaining under the control of the Presidency. The Attorney General, Treasurer, and Auditor would appoint their own subordinates, also subject to the advice and consent of the Senate.

Attorney General:  The Attorney General would be our chief law enforcement officer and would be elected separately from the President.  All federal police, prosecutions, and civil enforcement would fall under the control of the Attorney General.  In the matter of immigration, the President would continue to be responsible for border security because of the close associate between the border and international relations, but the Attorney General would handle internal removal.  Drug dealing, terrorism, spies, large-scale fraud, public corruption, and all the usual federal crimes would be handled by the Attorney General, along with civil enforcement actions.  

The President would continue to control the National Guard.  He would only be able to deploy the National Guard to enforce state law or uphold state authority only upon the request of the governor.  He would only be able to deploy the National Guard to enforce federal law or uphold federal authority only upon the request of the Attorney General.  The President would not be required to deploy the National Guard in such instances; refusal would always be an option.  And the law would define the conditions sufficient to justify use of the National Guard in some detail.  Use of the Army for domestic enforcement would be forbidden except in cases of invasion or civil war.

The Attorney General would also take over general regulatory enforcement but would not have the power of issuing regulations or deciding regulatory actions.  We all know the rule about separation of powers -- executive, legislative, and judicial powers must be exercised independently or freedom is lost.  Such was the theory when this country was founded.  We have since learned, through the existence of parliamentary systems, that freedom can survive the complete subordination of executive power to the legislature.  See above.

Furthermore, we follow the English system of common law that makes judicial precedent binding law.  In other words, our courts routinely exercise legislative functions but can be overruled by the legislature.  The same sometimes happens with regulatory agencies.  Some regulations are formally adopted under the Administrative Procedures Act, with publication in the Federal Register, public comments, and adoption of a specific written regulation.  But some are adopted by common law, i.e, by precedents set in administrative courts by Administrative Law Judges based on cases litigated before them.  Legislative and judicial functions are not so separate after all.

It therefore seems to me that the most important separation of powers is the separation of executive and judicial powers -- the authority bringing a case cannot be the one who decides it!

Our regulatory agencies are often criticized for violating the separation of powers. One and the same body issues regulations, takes regulatory actions, and decides whether there has been a regulatory violation, albeit with the right of appeal to the courts.  While these functions may be carried out by different branches of the same agency, all are answerable to the same leadership.  Our situation in immigration is a shocking example.  Enforcement is part of the Department of Homeland Security, while immigration judges are part of the Department of Justice and subject to the command of the Attorney General.  Donald Trump gives orders to both immigration enforcement agents and immigration judges and has been firing judges who displease him.  I am open to persuasion both ways as to whether we need to move administrative judges to the judicial branch in specialty courts, or whether stronger protections from firing are sufficient.  Either way, the Attorney General should be limited to bringing enforcement actions and should have no role in either making regulations or deciding cases.  And the President and regulatory agencies under the President's command should not undertake enforcement actions.

An obvious problem presents itself.  Must all regulatory enforcement be with the Attorney General?  Must every health inspector, say, work for the Attorney General?  And what of the special areas of expertise that regulatory enforcers are supposed to have?  I am open to persuasion on this one.  There are 46 states with independent Attorney General that we can use for guidance.  In general, though, I would propose that regulatory agencies have continue to have inspectors and the like who investigate, prepare reports, issue citations, civil fines up to a certain amount, and refer cases to the Attorney General for prosecution.  Criminal actions or larger civil penalties would be the responsibility of the Attorney General. with regulatory inspectors acting witnesses.

This arrangement would admittedly have the disadvantage of preventing the removal of a rogue Attorney General except by impeachment.  But a few other safeguards could discourage the Attorney General from going rogue.  The best such safeguard would be an extension of the Two Year Clause.  The Two-Year Clause says that no appropriation for an army can be of a longer duration than two years, i.e., then end of the current Congressional session.  An army is unlikely to go rogue if it knows that after the next election it will once again have to appear before Congress, hat in hand, to ask for funding.  Extend the same restriction to law enforcement and it becomes much more difficult for the Attorney General to go rogue.  Also recall that the President will not be able to pardon crimes committed by Department of Justice personnel.  And I would add one more safeguard.  Extend the statute of limitations for all crimes committed by federal employees to at least five years, i.e., beyond the term of the current Attorney General.  The prospect of defunding by the next Congress or prosecution by the next Attorney General should go a long way toward keeping Attorney Generals from going rogue.

To be continued.