If you saw me last night on Nicole Sandler’s show, The Nicole Sandler Show, you saw me lose my shit a little bit. Total 180 from the calm persona I try to affect here.
Nicole played a clip from MSNBC, the progressive network and my former employer. The clip of the progressive network came from a former Republican attorney appearing on the show of a former Republican member of Congress. On the progressive network.
It was George Conway, of the Lincoln Project. And he said we were in a constitutional crisis. That was what pissed me off. As I attempted to argue in yesterday’s TFN, the White House is still treating the courts as if they matter: They’re appealing rulings and their allies are advocating impeachment. All of which is part of the process.
Conway, though, was suggesting the administration had gone further than that, especially with Vice Pres. JD Vance challenging judicial authority over the executive branch. Conway interpreted that as a call to ignore the courts.
I lost my shit because too many on the left and too many supposed allies from the right — who for some reason get airtime on progressive networks instead of progressive voices — extrapolate to the worst case and then cede every inch of ground between reality and that.
It’s like when the Kennedy White House supposedly got two conflicting messages from the Kremlin — one civil, then one belligerent. They responded to the civil one and only to that one, keeping relations stable. Do that!
The culture of the left is so driven by essentialist concerns about who these people “really” “are” that their worst utterances get elevated and the left starts acting like that’s all there is to their adversaries. Answer the civil messages!
So Conway declaring a premature constitutional crisis pissed me off. Knowing my understanding of such crises was fuzzy at best, I looked it up. “Constitutional crisis” is a fuzzy term, but basically seems to come in two categories.
One I’ll call the inadequate-Constitution crisis. For instance, the Constitution doesn’t say what we’re supposed to do if the president is implanted with a xenomorph. (Even though we all know what we’re supposed to do.)
That’s not really where we are. But the other kind of constitutional crisis is when the Constitution is crystal clear what we’re supposed to do. And no one does it.
Ding! Ding! Ding!
However — I ranted at the Republican guest on the Republican show on the progressive network — we’re not at that point yet! The White House is complying with judicial orders!
Turned out, I wasn’t up on the news from a few hours before. The news of a judge declaring that the White House was, uh, not complying with a judicial order.
Fuckin’ Conway.
So, yes, technically, it seems: Constitutional crisis. But it also turns out that’s not as apocalyptic as some of you Newsfuckers might assume. Bear with me — you can always freak out later.
U.S. District Judge John McConnell yesterday ordered Pres. Donald Trump to start obeying his previous order. It was McConnell last month who ordered the White House to drop its freeze of billions in grants and other federal spending.
The White House didn’t, and yesterday, McConnell wrote that “These pauses in funding violate the plain text of the TRO [Temporary Restraining Order].” Here’s the passage:
In other words, the White House was acting just as lawlessly as everyone’s been saying. Fuckin’ Conway.
So, first of all, some good news about our constitutional crisis. Constitutional crises are survivable. America’s had something like half a dozen. Some constitutional crises are so gentle you don’t even notice them. One is so gentle, in fact, that you’re soaking in it!
Remember TikTok? The Supreme Court upheld the law giving TikTok the choice of selling itself off or being banned. Neither happened because Trump simply opted not to act.
But even there, Trump took steps toward ultimate compliance — he (illegally) granted himself the special accommodation of 75 days’ delay to figure it out. Plus, it’s pretty tough for the Supreme Court to tell Trump exactly what steps he should take, or which officials will be held accountable for not doing…whatever.
McConnell’s case is different. And he wasn’t afraid to up the ante. Even if his ruling is overturned on appeal, he wrote, U.S. officials must until then obey the restraining order or risk being found in contempt of court, which is punishable by fine and/or jail time. Here’s McConnell (emphasis is his):
“[It is a] basic proposition that all orders and judgments of courts must be complied with promptly. * * * Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. The orderly and expeditious administration of justice by the courts requires that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.”
(Wait til they find out McConnell’s a hardcore Democrat and worked with Planned Parenthood and the ACLU.)
While it may not be clear who’s supposed to flip the off switch for TikTok, it’s a lot clearer for federal spending. Treasury Department officials are now at risk of being found in contempt if they refuse to act on McConnell’s order. As are any White House officials whose memos tell Treasury not to comply.
But, but, the Supreme Court, you Newsfuckers may lament.
Ah, yes. The Supreme Court.
There’s good news here, too. Despite its historic and un-American ruling granting some legal immunity to (Republican) presidents, the Supreme Court hasn’t given Trump everything he wants and has ruled against him.
And on this particular issue, two judges, including a Trump appointee, are emphatically on record against Trump’s position. Specifically, they’ve already rejected the White House claim that presidents have the power not to spend allocated federal funds, a crime known as impoundment.
In 1985, Supreme Court Chief Justice John Roberts — a White House lawyer at the time — wrote a memo in which he said he hoped to “dampen any hopes that inherent constitutional impoundment authority may be invoked to achieve budget goals.” Referring to that supposed authority, Roberts wrote that the president “has none in normal situations.”
Trump may claim that this isn’t a budget issue, that he’s rooting out fraud, but he’s on record saying otherwise, his lawyers have admitted his other fraud claims are baseless, and McConnell has already written that “The freezes … [were] not a specific finding of potential fraud.”
And Justice Brett Kavanaugh wrote in a 2013 opinion — before he was nominated to the high court by Trump — that:
“It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend…
“...even the President does not have unilateral authority to refuse to spend.”
And this is from a judge who believes frat bros have unilateral authority over women’s bodies!
If McConnell’s ruling does make it to Roberts and Kavanaugh, Trump will be asking them not just to ignore their past opinions, but in Kavanaugh’s case to overturn them. That’s because McConnell, the sneaky bastard, packed Kavanaugh into his initial order by quoting him.
McConnell waded into battle with the White House wearing armor that Trump’s own justice forged.
What’s different about judges is that basic stuff like congressional power of the purse is part of the bedrock of their very existence. Every ruling they’ve made rests on that and similarly foundational principles. To rule otherwise not only invalidates everything that’s driven their every decision, in this case it would mean rendering moot the very institution, the branch of government, to which they’ve dedicated themselves and by which they define themselves.
What matters ultimately, though, is whether We the People care enough to steel the courts and wavering members of Congress to do their constitutional duty. McConnell’s order goes a long way toward accomplishing that.
SO DID ROBERTS In a helpful contextual piece (gift link = TFN loves you) on our current constitutional crisis, the New York Times reminds us that Roberts saw this coming. And issued a warning.
In his 2024 year-end report, Roberts two months ago addressed head-on the proclivity of unnamed but distinctly JD Vance-ian politicians to challenge judicial authority, one corner of the three-sided checks and balances. Here’s Roberts:
“...elected officials from across the political spectrum [sic] have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”
Americans have been conditioned to see Supreme Court rulings as something akin to papal writ, reversible only by the court itself, legislation, or amending the Constitution. People are not likely to look kindly on Trump or his congressional enablers if he violates Supreme Court rulings, especially if Americans see no benefit from it, especially if they’re hurt by Trump’s other policies, and especially in light of Trump’s general disregard for the kinds of guidelines literally every other person in this country has to follow.
Republished with permission from The Fucking News.
