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 and Auditor.

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 rely on federal funding and would be devastated if it were withdrawn.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.

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.  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.  Enforcement is by the Comptroller General of the Government Accountability Office (GAO).  However, Trump has thwarted such action by not appointing a Comptroller General.  (The holdover is not clear whether she has authority to bring suit).

Then there is the matter of the use of federal funds as a means of coercion.  Furthermore, federal funds are, quite property, 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 seems 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.  And, while allowing the executive some discretion in moving funds about is necessary, Trump has engaged in grossly inappropriate fund shifting.

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 whole 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 appropriate decisions about who should receive grants, contracts, etc. in accordance with the President's policy preferences.  The Treasury would actually disburse the funds.  

If the President wished not to spend funds appropriated by Congress, he would give the suitable notice to Congress and the Treasurer.  Congress would have 45 days to pass a rescission, or the Treasurer would disburse.  A good case could be made for giving the recipient power to sue for the release of 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 believes there is 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.  

Finally, 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).

The Treasurer would also pass financial regulations and have an enforcement role for tax collection and financial regulation.  This could be handled in the general manner I proposed, which is already the system in place.  The Treasurer would investigate tax and financial crimes, and the Attorney General would prosecute them.  The Treasurer might continue to undertake civil tax collections.

Shameful as it is to say, it is unfortunately necessary to add that the President, Attorney General, and Treasurer would all have separate IT departments so that they could deny unauthorized physical or computer access to the others.  (See Elon Musk).  I would also add 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), such a system really does not look too appealing.

So let me propose and 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 anyone but 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).  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," most economic policy, and most regulatory bodies.  (More on that later).

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 upon the request of the governor.  He would only be able to deploy the National Guard to enforce federal law or uphold federal authority 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.  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.  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.

An obvious problem presents itself.  Must all regulatory enforcers 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, and can issue citations and civil fines up to a certain amount, but criminal 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 it would also be a safeguard against improper political influence.  

To be continued.

Another Trip to Fantasy Land

Trump's recent behavior, particularly with regard to the war in Iran, siding with Russia over Ukraine, and escalation in ICE is most alarming.  Worse still, even if Democrats win the midterms by a landslide and successfully take office, it is not clear to me what they can do to stop him.  The President is largely unconstrained in foreign policy, and ICE has a large enough war chest to keep going for years.  

I don't see how anything short of impeachment can stop him.  Nor do I see any prospect that Republicans would vote for removal, at least in sufficient numbers to convict.  And even if we manage to remove him, JD Vance is next in line and would be, if anything, even more hardcore on immigration and siding with Russia over Ukraine than Trump.  (He might get out of Iran, though).  

Still, let me indulge another fantasy.  Imagine that before the election, or at least before the next Congress is inaugurated, something comes out that is so explosive that no one (even the people who might stage a coup on behalf of Trump) can defend it.  Democrats win by a sweeping landslide, and there is little doubt that they can actually impeach and remove.  We will have to implicate Vance in this as well as Trump.  Speaker Mike Johnson comes forward and warns Trump and Vance that they have a choice -- step down now and let Johnson take over, or be impeached under the Democrats and let Hakeem Jeffries take over.  Assuming that Trump and Vance are not public-spirited enough to care (a plausible assumption), Johnson offers a sweetener.  He will pardon Trump, Vance, and anyone else they want pardoned.  Jeffries is unlikely to do the same.  Trump and Vance step aside (either by resignation or allowing impeachment to go through).  

Johnson becomes President.  What would I expect of him.

Well, it is my longstanding rule that I prefer an unprincipled opportunist to a dogmatic ideologue because the opportunist can be expected to back down from the worst policies if it is in his interest.  I am not sure which category JD Vance belongs to, but I am quite certain Johnson is an opportunist.

As such, I would expect him to back away from Trump's pro-Russia policies because they are unpopular.  I would expect him to somewhat soften Trump's deportation policies at least to what the Department of Homeland Security prefers(!).  And I would expect him to stop openly antagonizing allies, drop Trump's baseless prosecution against enemies, tiptoe away from Trump's vanity project and behave like a normal person.  All distinct positives!

I would not expect a President Johnson to walk away from the war with Iran.  And I would certainly expect him to follow the usual Republican program of cutting taxes in the top brackets, undermining social spending, rejecting economic and environmental regulations, preferring fossil fuels to alternative energy, wrecking government programs through corruption and incompetence, backing the police unless they target in-groups, distrusting allegations of racism, and playing up culture war issues.  The usual stuff, except for the war in Iran, -- bad but not deadly.  He would probably also support government's expanding surveillance powers, which really is dangerous.  I have no idea what he would do about tariffs or inflation.  And I would expect him not to have anything close to Trump's egregious corruption, but to turn a blind eye on corrupt practices by subordinates.  I would expect Johnson to be much less cooperative with Democrats investigating Trump's abuses than a President Jeffries, not as uncooperative as Trump.  And I would expect him to veto Democratic legislation intended to curb future abuses.

In short, I would expect a President Johnson to be a fairly standard Republican.

While I think that most members of Team Trump are unprincipled opportunists who could settle down they considered it in their interest, there are four who I consider to be dogmatic ideologues and extremely dangerous -- Pete Hegseth, Stephen Miller, Russ Vought, and RFK, Jr.  My advice to a hypothetical President Jeffries would be to fire these four, even if you lack the political capital to fire anyone else.  I would expect a President Johnson to fire Pete Hegseth, who botched a war, and RFK, Jr., who is a threat to public health.  I would expect him to keep Stephen Miller.  He might try to reign Miller in a little, but Johnson is basically a weak man an easily dominated, so I do not think the attempt would go well.  And I would expect him to keep Vought on because he agrees with Vought's anti-spending policies.  Most Republicans do.

I suppose I should also give some though to a President Vance.  This is a realistic possibility, since it is certainly possible that Trump might die or become incapacitated before the end of his term. But some thoughts are too depressing to face.

A More Disturbing Thought: What are the Signs Trump is Consolidating Power

On the other hand, I think we may have to face facts.  Trump's power may not diminish. Instead, he may successfully consolidate power.  There are at least some signs of that as well.

The National Park Service has defied a court order by cutting down hundreds of trees to build a golf course.  Not the sort of defiance that allows for plausible, or even implausible, deniability.  Some people have suggested that this shows where his true priorities lie.  Another alternative -- he is starting out small and moving to more serious types of defiance.

ICE arrests and abuses are escalating.

He is openly assisting Russia against Ukraine (while still trying to maintain plausible deniability).  He is now openly defying a law passed by Congress placing sanctions on Russia.

He is running campaign ads paid by public money -- also illegal.

His ballroom sounds a lot like a defensive bunker where he would hunker down to resist removal from office.  He is working on other fortifications around Washington that also look suspicious.

All of these things are broadly unpopular, in defiance of Rule Number One of Smart Authoritarians -- save the unpopular stuff until after you have consolidated power.  Maybe Trump thinks he has consolidated power enough to consistently defy public opinion.

And, perhaps worst of all, I am not sure how to stop any of these, even if Democrats take control of Congress.

So, what are possible signs that Trump is consolidating power:

• He openly defies District Court orders.
• He openly defies laws passed by Congress.
• He becomes increasingly brazen in targeting political opponents.
• Escalating government spying on citizens.
• ICE is increasingly used to surveil and harass US citizens.

I would say that all of these are coming about.  Other things to look for:

• He openly defies the Supreme Court.
• He imprisons opponents (or others) without charges
• He openly uses ICE as a secret police against citizens
• He deploys the military against US citizens
• He successfully overturns the upcoming elections
• Opponents start falling out of windows
• He dissolves Congress, perhaps at gunpoint.  I admit this last seems unlikely, but we are talking about a parade of horribles here.

I am not saying that these things (especially the second list) will happen.  But be on the lookout for them, and be alarmed if any happen.

Another, Obvious Sign that Trump's Power May Be Waning

 

Of course.  How could I miss something so obvious?

We are seeing another sign that Trump's power may be waning.  Members of his inner circle are openly feuding, knives out for each other, and leaking like a sieve.  There is starting to be serious turnover (at least of women).  All of this looks very much like the turmoil and upheaval of his first administration.  That turmoil and upheaval was a sign that he did not have a firm grip on power.  

This just might be a sign that he is losing his grip.

Checking Up on Signs that Trump's Power May be Waning

 

So, with the midterm elections merely weeks away, let me check up on my signs that Trump's power may be waning.

1. Media outlets bought by Trump allies are willing to criticize or oppose him:  No real change from CBS is a mixed bag.  60 Minutes seems to be tamed, but CBS has done a stunning expose of the damage to US bases in the Iran war.
2. State Republicans defy Trump.  Cheers to Indiana Republicans for standing up to Trump and not gerrymandering.  What a shame it cost them the primaries.  But as Trump's popularity sinks, more and more Republicans are running from him.
3. Republicans in Congress splinter and Trump cannot bring them into line: Johnson has sent the House into recess to keep it from voting.
4. Attempts to target opposing organizations through taxes or RICO are thrown out, or never materialize:  Some very disturbing developments.
5. Universities, high power law firms, and other institutions targeted by Trump start consistently defying him:  Not sure.
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:  Stay tuned.
8. Democrats win control of the Senate and Trump cannot stop them: Stay tuned.
9. Growing numbers of state and local jurisdictions reject cooperation with ICE, putting more strain on the organization:  Virginia Governor Abigail Spanberger has withdrawn the State Police from ICE cooperation.  The Virginia Legislature has passed legislation limiting local cooperation.  Not much, but at least a little.  It is why I am so closely watching elections for governor in Florida and Texas.  I realized the legislatures of those two states are out of reach, but Governors can at least stop the State Police from working with ICE.  And in Florida, the Governor could stop removing local officials for not working with ICE.
10. ICE starts losing personnel faster than it can recruit them and begins shrinking: No.  ICE is ramping up operations again.
11. Big money interests start standing up to him:  To some degree, I think.
12. Trump supporters stop making death threats and harassment against people who he criticizes:  Ain't gonna happen.

Obviously, we are mostly waiting on numbers 7 and 8, which will make a huge difference.  I am also starting to think that maybe we should start looking instead at which institutions are most likely to defy Trump. As we ascend up the ladder, it will show which ones will be the last to turn against Trump if his power diminishes -- and which will be first and last to fall in line if he consolidates power.

1. Federal trial and appellate judges (With us!  Yay!)
2. Small, local organizations that can fly under the federal radar screen (a mixed bag, obviously, but able to defy Trump if they want to).
3. Media outlets (Yes, they still tend to "both sides" things, but Trump hates the media so much for a reason)
4. Large organizations like universities or law firms (?)
5. Republicans outside of Congress (quite heroic in 2020, being taken over by election deniers, but also starting to distance themselves from Trump).
6. Big money interests (?)
7. The Supreme Court (A few attempts to reign Trump in, but mostly in his pocket)
8. Republicans in Congress (Cowards!)
9. The Deep State, i.e., federal bureaucracy, aside from ICE and Border Patrol (under his control so in a difficult spot)
10. ICE and Border Patrol (won't defy him; we can only hope they fade away)
11. The digital mob (hopeless)

Sometimes the Most Aggressive Approach is Not the Most Effective (Domestic Politics Version)

 

That being said, let us be optimistic.  Let us assume that Democrats do win control of both houses of Congress, and that Trump fails to block them.  Then what?

My answer would be, instead of taking the most combative and intransigent position, take the smartest.  Understand that the most aggressive approach is not necessarily the most effective.  

We actually saw that illustrated quite well in the showdown over funding for ICE and Border Patrol.  Due to the insane way our budgetary rules are written, the Senate must have a 60-vote super-majority to pass an annual budget, but can pass a multi-year commitment to spending by a simple majority.  The One Bollixed Bonkers Bonanza had already allocated a $75 million dollar multi-year commitment of funding to ICE when its annual budget was previously only $10 million.  Democrats dug in their heels and demanded serious reforms as a precondition to any funding in the annual budget.  Republicans offered a requirement to use body cameras and training in de-escalation, both of which were in the law anyhow.  The standoff reached an unbreakable impasse, with neither side willing to yield, so Republicans circumvented the Democrats and passed a multi-year commitment of funds to take ICE and Border Patrol funding out of the annual budget altogether.  

So, sure, Democrats get bragging rights about never having yielded, but only at the cost of giving up any actual power.  In the clear light of hindsight, it would have been smarter for the Democrats to have agreed to one year of funding in return for requiring body cameras and de-escalation training. Would these restraints have been adequate?  Absolutely not!  Would the base have been outraged at the cave?  Almost certainly.  But if the Democrats had accepted these inadequate restraints, then assuming they were to win even the House of Representatives, they would be in a position to drive a hard bargain next year.  In return for annual funding, Democrats could demand real reforms such as:

• An end to quotas (admittedly hard to enforce)
• Keeping Border Patrol on the border
• Mandating a judicial warrant to enter a private space
• Protecting the independence of immigration judges
• Mandating bond for anyone with no criminal record and strong ties to the community
• Individual civil liability

In the end, Team Trump might have decided that it would rather forgo annual funding than agree to these terms, but even then the budget would have been smaller than it is now, giving ICE and Border Patrol less resources to do their damage.

Similar principles will apply assuming Democrats are able to control Congress and especially the Senate next year.

I think Democrats do understand this at least where impeachment is concerned, having learned it the hard way.  Donald Trump now has the dubious distinction of being the first President ever to be impeached twice.  But removal takes a two-thirds vote of the Senate, and it should be clear by now that Donald Trump could shoot someone in the middle of Fifth Avenue and still not get the two-thirds vote to convict.  If the Senate would not convict him for inciting a riot that put their own lives in danger, what hope is there!  Instead, Democrats are making the smarter plan to investigate and expose.  If something comes up so outrageous that public opinion even among the MAGA faithful calls for impeachment, so be it.  But it seems saftest to assume that it will not.

There are also calls if Democrats take the Senate for them to reject all Trump nominees, whether executive or judicial.  I whole-heartedly agree on the judicial nominees.  Yes, I know, many conservative judges are outraged by Trump's behavior and seeking to reign him in.  But unless you are convinced that a nominee is a mainstream conservative who will do that (which seems most unlikely), reject Trump nominees.  Assuming you are exposing outrages by the Trump Administration in your hearing, explain to the American people that you will not approve any judge who would defend these outrages.

But executive nominees are a different matter, and for two reasons.  First, if you refuse to confirm a judge, the judicial post will remain vacant.  No temporary Trump-approved substitute will step in.  If you refuse to confirm an executive nominee, the President has considerable power to substitute and "acting" official instead.  Second, by making clear that you will never approve an executive nominee no matter what, you remove all incentive to fire a bad official.  What if the point if Trump knows he will not be able to appoint a replacement?