Do we still have a Constitution?
by Andrew P. Napolitano · The Washington TimesOPINION:
This week, President Trump announced that he plans to give away tax dollars without congressional or judicial authorization to his friends and allies who he believes were mistreated by the Biden administration. Can he legally do that?
Here is the backstory.
During the last year of his first term in office, Mr. Trump’s tax returns were stolen along with those of 425,000 others by an IRS employee who leaked Mr. Trump’s information to media outlets. The acts of stealing and leaking were, of course, criminal, and the now-former IRS employee who pleaded guilty to theft of government documents served nearly four years in federal prison.
Yet the publication of the returns was protected under the Supreme Court’s decision in the Pentagon Papers case. In that case, Daniel Ellsberg famously stole documents from the Department of Defense, where he was a civilian employee.
When word got out that he had delivered about 7,000 pages to The New York Times and The Washington Post, the Nixon Department of Justice filed complaints in two federal courts and obtained restraints on both newspapers, preventing publication. The stolen documents revealed that U.S. generals had been misleading President Johnson about success in the Vietnam War and LBJ had been misleading the public.
The Supreme Court bypassed two intermediate appellate courts and accepted appeals directly from the trial courts’ decisions that imposed the injunctions.
After a very short briefing schedule and a memorable oral argument, the court ruled that although the thief who stole the secrets can be prosecuted, media outlets that publish even stolen matters that are material to the public interest may do so without criminal prosecution or civil liability. This was the high-water mark for press freedom in America.
After various publications and websites published Mr. Trump’s tax returns, his attorneys convinced him that the Pentagon Papers case was so well-settled that he should not bother suing anyone in the media, and the thief, by then sitting in a federal prison, was effectively judgment-proof.
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So, Mr. Trump waited until after he returned to the White House to sue the IRS for permitting the theft. Surely, a private citizen who has been harmed by grossly negligent government behavior should have a cause of action against the government.
How about the president suing the IRS, which works for him? How can the IRS be represented by the Department of Justice, which also works for the president? How can the acting attorney general, who is Mr. Trump’s former criminal defense attorney, permit the Justice Department he supervises to be adverse to the president, who is the chief federal law enforcement officer in the land?
Well, the case gets curiouser and curiouser. As early this week, Mr. Trump and the Justice Department announced that they had “settled” his case against the IRS by using Justice Department funds, appropriated to pay judgments against the U.S., to establish a $1.8 billion fund to distribute cash at Mr. Trump’s discretion to people he believes were aggrieved by their treatment at the hands of the Biden Justice Department.
This entire litigation and its resolution implicate serious constitutional issues that the acting attorney general and Mr. Trump wish would go away.
First is the constitution’s case or controversy clause, which requires that federal courts may hear only real disputes, with real adversity between the parties, a level of conflict that is nonexistent here. One of the purposes of the clause is to prevent the use of federal courts to facilitate the very type of collusion between the parties that is paramount in this case.
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How can Mr. Trump be both the plaintiff and the legal superior of the defendant? He cannot. That is why this case never reached a federal judge for disposition. Had it done so, the judge would have shelved it — dismissal without prejudice is the proper mechanism — until Mr. Trump is out of office.
The second constitutional impediment is equally as troublesome. The Constitution’s appropriations clause requires that no money shall be drawn from the Treasury except that which has been appropriated by Congress and spent as Congress directs. The scheme concocted by Mr. Trump, his own IRS and his own Justice Department was never presented to Congress, nor did Congress appropriate these funds for this purpose.
The scheme is probably not front-page news, but it involves nearly 2 billion taxpayer dollars and is another example of the government’s cavalier indifference to constitutional norms.
This is not to argue that Mr. Trump has no case against the IRS; rather, the case cannot be litigated while he is in the White House, and it cannot be resolved in a way that substantially burdens the taxpayers without congressional or judicial approval.
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In the post-World War II era, Congress has happily looked the other way as presidents encroached on its powers and privileges, hoping for political popularity while dismissing its constitutional obligations.
Although Congress and the presidency are equal branches of government, Congress is the first among equals. This is not a question of power. It is a question of will.
Congress is the preeminent branch. It can remove jurisdiction from the Supreme Court, and it can remove a president from office. The Constitution’s drafters contemplated a Congress jealous of the encroachment upon its powers.
Why let a president kill boat people without any due process?
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Why let a president start a war when the Constitution clearly reserves that authority in Congress?
Why let the president impose and collect sales taxes on products and services originating in foreign countries when the Constitution makes clear that only Congress can do that?
Now this: Why let the president, under the guise of settling a lawsuit with no adversity between the parties, and with no judicial oversight or approval, take tax dollars and give them to his political allies?
These dangerous times are made worse by a supine Congress and a constitutionally indifferent president. The Constitution cannot enforce itself. Which part of it will the president evade, and which will Congress overlook next?
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• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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