Checks and Balances, Be gone!
In three weeks, Trump has undermined a core pillar of American governance, sparking crisis.
Of the many horrors that have emerged in Trump’s three short weeks back in office, the one occupying the majority of my attention is the fight surrounding one of the more than four dozen executive orders Trump has signed so far. Among other things, the “Unleashing American Energy” order aims to “terminat[e] the Green New Deal,” by freezing any and all related funding.
As a refresher for those who need it: Unlike Europe, America has no such thing as a Green New Deal. In 2019, Representative Alexandria Ocasio-Cortez first introduced a resolution that, if passed, would have called for the creation of such a deal. But, after being referred to committee after committee, the bill died. Two years ago, AOC and Senator Edward Markey reintroduced the resolution. It faced the same fate.
Even if either version had passed and been signed, that would not have guaranteed the creation of a Green New Deal. It would have just acknowledged the need for one.
Nonetheless, Trump has summoned the Right’s ability to muster hatred for language it finds objectionable, and directed it against the imagined “Green New Deal.” In this case, the Green New Deal refers to two little-known laws: the Inflation Reduction Act and the Infrastructure Investment and Jobs Act (also called the Bipartisan Infrastructure Law). Together, these two laws promised to generate more than $2 trillion in federal spending for everything from highways and high speed rail to solar power and heat pumps.
Billions of dollars from these two funding packages has already been awarded to states, businesses, and nonprofits. Agreements have been drawn up and executed by the Department of Energy, the Federal Railway Administration, and other federal agencies. Biden and his team made a show of awarding tranches of funding before they left the White House; in theory, because, once awarded, that funding can’t be clawed back. Yet, that’s just what Trump and company have attempted to do.
The funding freeze declared in Unleashing American Energy has meant that parties promised millions to carry out projects across the country have been left with nothing — continuing Trump’s long-trend of reneging on contracts. Pausing disbursements, without cause or notice, that states and their contractors were depending upon is shameful enough on its own. But — to the point of my aforementioned horror — it’s also unconstitutional.
So far, 23 states have sought to use federal courts to force the administration to continue to execute its obligations. On January 31, Judge John McConnell issued a temporary restraining order that demanded an end to the freeze, calling on federal agencies to fulfill their financial responsibilities. But, as of last Friday, many of the funding streams were yet to be restored. The Trump Administration acknowledged the restraining order but refused to comply in full. So, the states filed an emergency motion requesting enforcement of the order, which Judge McConnell granted this morning.
But it begs the question: What does enforcement look like?
So far, it has meant sending another court document signed by a district court judge, and this morning’s motion acknowledges that those who “refuse to obey an order generally risk criminal contempt.” If charged, the parties found liable for such contempt would, under normal circumstances, be subject to potential fines and jail time.
These, of course, aren’t normal circumstances.
The defendants to the lawsuit include Donald Trump and several of his confirmed cabinet members. If they are held in criminal contempt, what penalties can be levied? Trump, after all, has already escaped punishment for one felony. I can’t imagine this contempt will play out any differently. Perhaps his cabinet members won’t be so fortunate to escape unscarred. But Trump has no shortage of sycophants ready to flock around any vacancy.
A constitutional crisis is unfolding before us. The Trump administration already violated the constitution by withholding funding appropriated by Congress and awarded. Now his actions stand in direct contravention of one of the most foundational pillars of our country: the idea of checks and balances.
The balance of powers between the three branches has never been perfect, but at least it has been respected. Now, Trump has tossed this idea into the dumpster fire burning on the North Lawn along with every other norm he finds distasteful. He has shown that when you occupy the highest office in the nation, rules become meaningless. No one can force him to comply, and Congress has shown they won’t impeach him. So, judges can send harshly worded letters; it won’t change anything. For him, court orders are just words on a page and, like any other words, they can simply be ignored.
Where are the checks? Where are the balances?