Trump Issued Perhaps His Most Terrifying Executive Order on Tuesday

Yahoo

21-02-2025

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Over the past month, many have warned that President Donald Trump is trying to make himself king or dictator. Trump's defenders wave off such warnings as hysterical hyperbole. The past week has shown that they are very much not.
Indeed, Trump's own monarchical statements aside, his recent executive orders, notably the one purporting to eliminate the autonomy of federal independent agencies, combined with the actions of the leaders of Trump's Justice Department are significant steps toward an American dictatorship.
The defining attribute of a dictatorship, as well as of kingship in its ancient and absolute form, is the assertion that law—its making, interpretation, adjudication, and enforcement—is an emanation of the will of one man.
As King James I of England put it in a lively little work he published in 1598 titled The True Law of Free Monarchies, kings emerged:
before any estates or ranks of men, before any parliaments were holden, or laws made, and by them was the land distributed, which at first was wholly theirs. And so it follows of necessity that kings were the authors and makers of the laws, and not the laws of the kings.
Acting on this theory, James ruled without Parliament for long periods, granted dispensations from statutory law for courtiers and confidants, administered the law through special 'prerogative courts' in which the rule of decision was derived from the will of the king, and generally conducted himself as an absolute monarch. His son Charles I was even more convinced of his divine right to absolute legal sovereignty, a disposition so resented by the English that in 1642 Parliament took up arms in a civil war that ended with Charles' execution and Oliver Cromwell's Commonwealth.
After the monarchy was restored in 1660, British kings and queens ever after acknowledged that statutory law could only be made by the crown and Parliament acting in concert, that such statutes bound the monarch's official actions, and that the interpretation of law was primarily a function of judges who based their decisions on statutes and precedent, not the will of the monarch.
The next great constitutional upheaval in Britain, the Glorious Revolution of 1688, displaced King James II in favor his daughter Mary and her consort, William of Orange. To gain the throne, they had to accept the English Bill of Rights which, among other things, abolished the royal power to nullify statutory law, either in general or for the benefit of particular people. Parliament also changed the royal coronation oath to require that monarchs swore to govern according to the laws enacted by Parliament and the laws and customs of the realm. That is, each new monarch had to agree that he or she was not the maker of law, but the upholder of laws made by or in concert with the legislature and judges.
Thus, by 1776 the constitutional monarchy of King George III, the monarchy Americans deemed so tyrannical that they rebelled against it, was not democratic because its royal head was selected by heredity rather than election, but it was already fully committed to the rule of law—the fundamental principle that the law is above even the king.
Our founders wanted both popular participation in the choice of rulers—democracy—and the rule of law. They were nonetheless nervous about the risks inherent in pure democracy, particularly the historical phenomenon of the demagogue who manipulated the passions of an ill-informed majority to make himself a monarch beyond the control of law.
For that reason, they designed a government of separate, but mutually checking, branches in which the principal powers of making and interpreting law were conferred on Congress and the judiciary, not the president. And copying their British forebearers, they put into their Constitution the text of an oath to be sworn by the chief executive placing him under the law: 'I do solemnly swear … that I will … to the best of my ability, preserve, protect and defend the Constitution of the United States.'
The founders' fears of dictatorship found a real-world overseas exemplar soon after the Constitution was ratified. In 1799, a Corsican artillery officer named Bonaparte led a coup against the government of post-Revolution France, first making himself dictator (under the title 'First Consul') and later, because in those times the titles and trappings of monarchy legitimated dictatorship, Emperor.
Thus, when Trump quotes Napoleon's alleged declaration that 'he who saves his Country does not violate any Law,' he adopts the view of an undoubted tyrant—and a man despised by our own founders. As Thomas Jefferson wrote in a letter to John Adams in 1815, Napoleon was a 'Usurper' and 'Autocrat' who was possessed of a 'tyrannical soul' and a 'ravenous thirst for human blood.'
The death of most European monarchies after World War I did not signal the demise of lawless autocracy so much as its translation into the new form of nonhereditary dictatorships, Adolf Hitler's first among them. A central pillar of Nazism was the Führerprinzip, or 'leader principle,' which made Hitler the supreme authority on all questions of law and policy, superior to the legislature, judges, and all civilian and military authority. This was not, of course, a mere theoretical construct—those who denied Hitler's claim to supreme authority were dismissed, impoverished, imprisoned, tortured, or killed.
We will recognize an American dictator if he openly proclaims that he is superior to the law, does what he pleases regardless of law, and seeks to crush those who seek uphold the rule of law against him.
Which brings us to Trump's new executive order on 'independent agencies.' In the 20th century, Congress recognized that it lacked the in-house expertise to draft statutes of sufficient refinement to address increasingly technical questions raised by modern finance, commerce, and technology. Accordingly, it increasingly enacted statutes that created rules of a fairly high level of generality and delegated responsibility for making more particular legal rules—called 'regulations' —to executive branch agencies with expertise in the field. This rulemaking is carried out according to a stringent set of procedures mandated by the Administrative Procedure Act.
In addition, it became clear that Article 3 federal judges lacked both the numbers and the specialized knowledge to adjudicate all the disputes arising under federal regulations. Thus, a new class of jurist—the administrative law judge—was created to preside over regulatory cases in virtually every federal agency. Accordingly, in the U.S., as in virtually all modern states, law is made and interpreted not only by the legislature and the courts, but also by a multitude of executive branch officials applying their own expertise and judgment to the creation, interpretation, and application of administrative law.
Many of the agencies that perform regulatory and adjudicative functions are ordinary Cabinet-level departments, the heads of which are nominated by the president, confirmed by the Senate, and removable at will by the president. However, Congress believed that some governmental functions should be performed by bodies with an extra degree of independence from the personal control of the president. Accordingly, when it created the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Federal Trade Commission, and others, it made them 'independent agencies' in the sense that, while constitutionally in the executive branch and broadly subject to presidential direction, they are headed by a person or commission whom the president can remove only under stated circumstances.
On Tuesday, Trump issued an executive order which purports to do several things.
First, it purports to abolish the independence of congressionally created independent agencies and subject the heads of all such agencies to performance (and by implication, dismissal) standards set not by Congress but by the White House Office of Management and Budget. This portion of the order is a bald power grab that plainly violates Supreme Court precedent.
Second, the order asserts as to independent agencies the claim Trump has already made about the rest of the executive branch—that he can ignore Congress' statutory commands about how appropriated money shall be spent. The nonchalance of this declaration reflects Trump's growing confidence that the Republican Congress will not protest his usurpation of the legislature's constitutional power of the purse, and thus that the legislative branch already bows before the Führerprinzip.
In addition, the Feb. 18 executive order makes a breathtaking assertion that reaches far beyond independent agencies, declaring that the president (and the attorney general subject to the president's control) 'shall provide authoritative interpretations of law for the executive branch' and that:
No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General's opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
In short, Trump is declaring that in all questions of either making law in the form of regulation or interpreting any law whatever—regulatory, statutory, or constitutional—the only executive branch opinion that matters is his.
If Trump opines, for example, that SEC regulations do not bind Elon Musk, then that is the authoritative position of the executive branch, from which no SEC commissioner may dissent.
If he opines that all the procedural protections for immigrants contained in the Immigration and Nationality Act and implementing regulations are no longer operative, his 'opinion' is 'authoritative' and no employee of the Department of Homeland Security—including presumably its immigration judges—can disagree.
If he opines that regulations governing the oil and gas industry or the discharge of toxic effluents into the water should be amended, or merely reinterpreted, to give special privileges to his campaign contributors, that, too, would be an authoritative declaration from which no dissent would be allowed.
If he decides that the FBI and the Justice Department may legally commence criminal investigations or prosecutions against his 'enemies' without any factual basis, then that is the 'authoritative interpretation of law for the executive branch.' And, as demonstrated by the forced resignations of multiple Justice Department prosecutors in New York and D.C. in the past week, anyone who disagrees publicly with such patently unethical or illegal 'interpretations' of law will be deemed 'disloyal,' forced out of government, and possibly investigated themselves.
One can, if willfully blind, ignore as a kind of twisted playfulness Trump's social media quotations of Napoleon or the White House's posting of an image of Trump wearing a crown. But there is nothing playful in the content of Trump's executive orders or the behavior of his thuggish minions at DOJ. Having already subdued Congress, Trump has now openly announced that the Führerprinzip governs the executive branch and that he will crush any honest public servant who dissents.