Defying the courts

The end of the rule of law in the United States is nigh

ProPublica reports that the Trumpniks appear to be ignoring if not quite yet formally defying court orders.

The Trump administration is not backing down in its fight to slash spending and dramatically reshape the federal government, despite multiple court orders explicitly restraining the president’s sweeping executive actions. In some cases, to get around the judges’ rulings, the administration has cited a memo that it says is not subject to the existing orders. In others, it denied funding to organizations because their granting agencies are not defendants in one of the ongoing legal challenges. In others still, it has withheld funds by citing the agencies’ own judgment, not the president’s directives…

The administration has not always stated policy reasons though. Instead, in some cases, it has blamed the grinding machinery of government bureaucracy.

On Thursday, for example, a Department of Justice lawyer denied the administration was not abiding by the court’s rulings in one of the two cases challenging the government’s spending freezes, this one brought by a coalition of state attorneys general. He told an attorney representing Oregon that the Environmental Protection Agency was “working through the process of unsuspending grants, which is taking some time given the nature of the process.”

In another email, the same official wrote to a lawyer for New York that the delays in releasing funds to the state were not examples of the administration’s obstinance but were instead “very likely related to” the federal Payment Management System’s “ongoing process of working through the unusually large number of payment requests they received.”

In other words, they’re about halfway across the Rubicon of constitutional law.

Adolphe Yvon, Caesar Crossing the Rubicon (1875)

And yet, even in the face of this rupture, we have liberal lawyers like Victoria Nourse (former general counsel for Biden when he was VP and, surprisingly, still apparently sitting on the U.S. Commission on Civil Rights) pearl-clutching that, “This is part of a pattern where President Trump appears to be asserting authority that he doesn’t have.” Leave aside the pathetic hedging with “appears to be,” what this line of reasoning fails to grasp is the essential political fact of the moment, namely that if people in positions of power continue to follow the President’s orders then functionally speaking he does have said authority, regardless of the pettifogging niceties of black letter law and settled jurisprudence. Or to put it another way, we have achieved the defining feature of authoritarianism, which is the collapse of any distinction between legal authority and raw political power.

It’s not clear what lies on the other side of this legal torrent, but presumably it means something akin to Peru’s fascist President Óscar Benavides’s legendary line, “For my friends, everything; for my enemies, the law” — that is, the end of the rule of law, and its replacement with rule by law. To understand what this will look like as a practical matter, consider how the law works in places like China or Russia: lawyers have lots of work in such systems, but it doesn’t involve contesting cases based on objective consideration of agreed facts (except in petty disputes between non-prominent private citizens), but simply in providing a formal mechanism for making politically predetermined decisions legible.