The Courts Can’t and Won’t Save Us, Part 805

INSIDE: Florence Pan ... E.J. Antoni ... Solomon Peña

(Photo by Andrew Harnik/Getty Images)

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

RIP USAID

Yesterday brought another example of the extreme difficulty of litigating the constitutional structure of government in court and its inadequacy in reining in Trump’s lawless rampage in a timely fashion.

You may have seen that the D.C. Circuit Court of Appeals, in a 2-1 decision by Republican appointees Karen Henderson and Gregory Katsas, effectively ratified the Trump administration’s freezing of foreign aid funding. It was a bit more nuanced than that.

The court ruled that foreign aid groups could not legally challenge the impoundment of the foreign aid funding. Under the law, the court concluded, only the Government Accountability Office, an arm of Congress, can challenge the president’s impoundment of funds. To date, the comptroller general, who heads the GAO, hasn’t take that step. To emphasize, the GAO hasn’t even commenced a lawsuit yet. (Joyce Vance has more on this mechanism.)

The upshot is that after months of litigation, during which United States Agency for International Development (USAID) has been dismantled, it’s back to square one to hold Trump to account for his lawlessness. Or to put it another way, the damage has already been done and cannot now or at some future date be rectified in any meaningful way. One caveat: It’s possible the full court of appeals could overturn the panel decision.

The dissent by Judge Florence Pan, a Democratic appointee, was scalding of the majority:

My colleagues in the majority excuse the government’s forfeiture of what they perceive to be a key argument, and then rule in the President’s favor on that ground, thus departing from procedural norms that are designed to safeguard the court’s impartiality and independence. Moreover, the court’s holding that the grantees have no constitutional cause of action is as startling as it is erroneous.

In her dissent, Pan was clear about the structural constitutional issues at stake and the enforcement role that the two-judge majority was abdicating:

At bottom, the court’s acquiescence in and facilitation of the Executive’s unlawful behavior derails the “carefully crafted system of checked and balanced power” that serves as the “greatest security against tyranny — the accumulation of excessive authority in a single Branch.” Because the court turns a blind eye to the “serious implications” of this case for the rule of law and the very structure of our government, I respectfully dissent.

The USAID debacle remains one of the most haunting aspects of the first months of the Trump II presidency. And the collective inability, unwillingness, and indifference of the courts to rein it in is a sobering sign of the limits of judicial power against this executive.

Law Firms Who Struck Deals With Trump Now Pay the Piper

NYT:

Two of the law firms that reached deals with President Trump this year to avoid punitive executive orders were connected in recent months with the Commerce Department about working on trade deals, according to three people briefed on the matter.

The firms, Kirkland & Ellis and Skadden Arps, were connected to the department by Mr. Trump’s personal lawyer, Boris Epshteyn, two of the people said.

Quote of the Day

“Only historians and trained museum professionals are qualified to conduct such a review, which is intended to ensure historical accuracy. To suggest otherwise is an affront to the professional integrity of curators, historians, educators and everyone involved in the creation of solid, evidence-based content.”–Sarah Weicksel, executive director of the American Historical Association, on President Trump’s politicization of the Smithsonian Institution.

Trump White House Wants to Tamper With Jobs Numbers

The Trump White House is involved in discussions about changing the way the government collects and reports jobs data, the WSJ reports. It is clearly another way that the White House is trying to tinker with the jobs report to placate the president and minimize political damage from bad jobs numbers.

Oh?

NBC News reported that E.J. Antoni, President Trump’s egregiously unqualified nominee to lead the Bureau of Labor Statistics, can be seen in multiple videos on the grounds of the Capitol on Jan. 6, 2021, before leaving the area. The White House says Antoni was merely a curious “bystander” who wandered over to the Capitol after seeing news reports and did not cross any barricades or demonstrate.

The Corruption: Trump Pentagon Edition

Reuters:

Donald Trump’s Navy and Air Force are poised to cancel two nearly complete software projects that took 12 years and well over $800 million combined to develop, work initially aimed at overhauling antiquated human resources systems.

The reason for the unusual move: officials at those departments, who have so far put the existing projects on hold, want other firms, including Salesforce and billionaire Peter Thiel’s Palantir, to have a chance to win similar projects, which could amount to a costly do-over, according to seven sources familiar with the matter.

More Medicaid Cuts in the Works?

Politico: “An influential group of House Republicans has invited a chief architect of the hard-right push for deep Medicaid spending cuts to brief congressional aides Thursday as GOP leaders quietly map out a possible second party-line reconciliation package.”

Notable

The good government group Common Cause is backing away from its longtime opposition to gerrymandering and partisan redistricting, saying it will not actively oppose mid-decade redistricting in blue states.

Good Read

How Ukraine is scrambling to make sure Donald Trump doesn’t sell it out in tomorrow’s summit meeting in Alaska with Russia’s Vladimir Putin.

80 Years

Solomon Peña, the failed New Mexico candidate who was convicted of shooting up the homes of four Democratic officeholders in 2022-23, was sentenced to 80 years in prison.

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