Will enough ever be enough for congressional Republicans?

Robert Robb

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Our forefathers pledged their “sacred honor” to create an independent country for a free people, based upon the rule of law. Honor is indeed sacred. Holding elective office is not.”

Donald Trump’s erratic tariff policy threatens to tank the U.S. economy. It has already caused lasting damage to the country’s status as the most stable and open political economy in the world.

These tariffs are of doubtful legality. Trump claims to be issuing them under the International Emergency Economic Powers Act. However, that law does not expressly authorize tariffs. It refers to sanctions, regulating commercial transactions and asset seizures. But not tariffs.

The Constitution clearly gives the power to regulate international trade, including enacting tariffs, to Congress. Congress has delegated tariff-setting authority to the president. But laws expressly giving the president such authority also prescribe a process to be followed. There is to be an investigation and findings rendered. There is an opportunity for public comment. A Truth Social post doesn’t suffice.

Trump’s assertion of emergency tariff-setting authority is being challenged in court. But Congress could put an end to the damage from this tariff turmoil at any time. A resolution overriding Trump’s declaration of an economic emergency passed the Senate with the support of four Republicans. Seven Republican senators have sponsored a bill requiring advance notification by the president of any tariffs and automatically repealing them if not approved by Congress within 60 days. So, there is some stirring of a reassertion of congressional authority in this area. But nothing close to the support among congressional Republicans that would be necessary to change the course of events.

Partisan loyalty

The country has been badly served by the rise of partisan loyalty that Washington warned against. Members of Congress, in both parties, see themselves overwhelmingly as members of a political team. They need to execute the play the team has called. Exercises of individual judgment and conscience are the exception, not the rule.

Since the rise of parties in the early 1800s, that’s always been the case, albeit not to the extent it dictates events today. However, until relatively recently, members of Congress also saw themselves as part of another team, the institution in which they served. And they defended, on a bipartisan basis, the constitutional role and prerogatives of that institution.

Trump is the undisputed leader of the Republican team. He is calling the plays. I have little hope of this happening. But congressional Republicans should be haunted by what executing their part in these plays, at a minimum offering public support, is costing them. Not mostly politically, which is a cost borne primarily by Republicans in swing states and districts. But morally, which is a cost borne by all.

Rule of law

Trump is engaged in the widest assault on the rule of law in U.S. history.

He has sued media outlets for reporting and commentary clearly protected by the First Amendment. Some have settled by making large donations to Trump’s presidential library fund. It’s a political shakedown.

A similar shakedown is taking place with law firms who have represented Trump’s political opponents or had lawyers who participated in some of the legal proceedings against him. Some have agreed to do pro bono work for causes Trump favors. Under the rule of law, law firms aren’t threatened with punishment by the government for the clients they represent. And their pro bono work isn’t dictated by the preferences of a politician.

Trump is attempting to leverage federal funding to force universities to make unrelated administrative and curriculum changes, using charges of antisemitism as the battering ram. Universities that receive federal funds are subject to civil rights laws. However, as Harvard pointed out in its statement of defiance, the statutes require a process, an investigation and findings that can be disputed. The Trump administration is making demands before that process has really been started, much less completed. This isn’t the rule of law. It’s the rule of the Queen of Hearts: sentence first, verdict afterwards.

The abuse of power became naked and unarguable with the Executive Orders launching investigations into two individuals directly: Christopher Krebs and Miles Taylor. The EO with respect to Krebs was particularly Orwellian. One of the justifications for the investigation is that Krebs, who was head of the Cybersecurity and Infrastructure Security Agency at the time, said that there was no evidence that any votes were changed by voting machines in the 2020 election. What Krebs said was objectively true. Trump’s statement in the EO to the contrary is objectively false. Yet Big Brother is launching an investigation based upon the premise that what is true is false, and what is false is true.

The Trump administration has asserted the power under the Alien Enemies Act to deport members of a Venezuelan gang. Given that the act has only previously been invoked during actual wartime — the War of 1812, World War I, and World War II — it is also a dubious assertion of authority that hasn’t been litigated.

However, the U.S. Supreme Court held unanimously that, if the act is used, those subject to deportation have to receive due process including an adjudication of whether the person subject to deportation is, in fact, a member of the gang.

The Trump administration has sent a couple hundred deportees to a prison in El Salvador, none of whom had the due process the high court said was required. Each and every one of these deportations was illegal. Yet the Trump administration is asserting that it can do nothing to reverse them and there is nothing a court can order it to do to try to get them back.

Ponder that for a moment. The U.S. is paying El Salvador to incarcerate these deportees. Yet it has no ability to subsequently remove one, irrespective of the circumstances? What kind of idiotic and monstrous arrangement is that?

Congressional Democrats have asked for a copy of the agreement, as have lawyers for some of the deportees. The Trump administration has said that the agreement is classified and a state secret, which is preposterous. Regardless, it defies belief that if the United States wanted some or all of the deportees back, the Salvadoran autocrat, Nayib Bukele, wouldn’t comply. This is the Trump administration thumbing its nose at the rule of law.

The indifference to the rule of law is particularly poignant in the case of Kilmar Abrego Garcia, who had a court order specifically forbidding his deportation to El Salvador. Rather than endeavoring to get him back, the Trump administration, in an act of moral degeneracy, is saying tough luck and perpetuating unproven claims about him.

Trump is the mirror opposite of William Taft, who was probably the country’s most constitutionally fastidious president. For any proposed action, Taft’s first screen was whether it was something he was authorized to do by the Constitution or statutory law, narrowly construed. For Trump, it begins with the desired action. Then there is a search for any constitutional provision or statute that can be stretched or distorted to provide a fig leaf of legality.

No justification

Now, I could talk all day about the faults of liberalism and liberals. However, wrongheaded liberal policies and liberal hypocrisy doesn’t justify any of this.

And Trump, in some respects, has been wronged by past legal actions against him. The Russian collusion thing was a witch hunt. If he were just a private developer, the felony charges for cooking the books for which he was convicted would never have been brought. I exclude from this the cases brought on mishandling of classified documents and the attempted coup, both of which contained credible charges of legal violations. But, again, none of this justifies what Trump is doing. The way you repair a breach in the rule of law isn’t by creating additional breaches.

What’s a congressional Republican to do in light of all this, knowing that it will only get worse, not better? Let’s exclude the MAGA fire breathers. Let’s assume that there are some congressional Republicans who remain committed to the separation of powers and the rule of law. Let’s call them, for convenience, traditional Republicans.

The first step would be to play Team Congress in addition to Team Trump. Trump is the president and titular head of the Republican Party. Things such as avoiding a major tax increase at the end of this year require working with him.

However, the more Republicans express support for returning authority for tariff-setting to Congress, the less political room Trump has to do damage to the economy through his tariff tantrums. And traditional Republicans should certainly have an interest in learning and exercising oversight over what kind of arrangement the Trump administration has struck to house deportees in Salvadoran prisons.

Political backlash

With respect to Trump’s broad assault on the rule of law, traditional Republicans have a moral challenge. Any departure from the Trump-can-do-no-wrong mantra will result in political backlash. Criticism regarding these actions will generate a particularly fierce backlash. In MAGAland, these are the actions that are sticking it to the libs. And they are part of a retribution campaign that’s deeply personal to Trump himself. Unless mismanagement of the economy loosens Trump’s hold on GOP primary voters, criticizing Trump on these rule of law matters would probably result in a loss of office.

But what is the cost of not speaking out?

I have always preferred the Burkean approach to political representation, in which an elected official acts according to his independent judgment and conscience and leaves it up to the voters in the next election whether that meets with their continued approval. However, that requires putting independent judgment and conscience above holding office. It means that there are things worse than being a former senator or representative. Such as remaining silent when in a position of authority while the separation of powers was further eroded and the rule of law undermined. When the fundamentals of our governmental order needed defending, and not just by those in the opposition party.

Are there such people among congressional Republicans? The evidence that there are some is currently scant. However, the offenses against conscience mount.

Our forefathers pledged their “sacred honor” to create an independent country for a free people, based upon the rule of law. Honor is indeed sacred. Holding elective office is not.

Editor's note: Retired Arizona journalist Robert Robb opines about politics and public policy on Substack. Reach him at robtrobb@gmail.com. Please send your comments to AzOpinions@iniusa.org. We are committed to publishing a wide variety of reader opinions, as long as they meet our Civility Guidelines.