Author: Daniel Castellano

The Orange Tyrant’s capricious on-and-off tariffs are of interest not for their value as economic policy, as it is childishly simple to show, as many have done, that their result is short-term inflation and long-term harm to production. The legal questions raised, such as whether a president can use patently bad-faith national security rationales to impose tariffs under existing law, or whether and to what extent Congress can delegate to the executive branch its core constitutional power of taxation, are of considerable interest, but we may save those for another time. Of all the unprincipled acts of our unprincipled executive, tariffs are of most interest because they are the closest thing the Orange Tyrant has to a policy belief, one he has held for decades, and one that he continues to hold even in the face of negative economic effects and declines in popularity. The sincerity of this conviction, though it speaks of profound economic ignorance, more forcefully conveys the character of the grievance-laden worldview that motivates it and the gangster practices invoked to remedy these grievances.

While the identity of the culprits of have changed over the years, from Japan in the eighties to China and Europe today, the egomaniac has consistently portrayed international trade as a zero-sum game where other nations “rip us off” and sell their products to the U.S. on more favorable terms than the U.S. sells to them. It is left unclear who is the “us” being ripped off: U.S. businesses, the U.S. government, the U.S. consumer, or the U.S. worker. Spelling that out would require articulating a clear understanding of macroeconomics. The egomaniac functions on a more visceral level, identifying his personal likes and dislikes with the interests of “us” the nation.

As he ran his private businesses, the egomanic disliked having to pay for anything, and often took advantage of the weakness of small vendors to force them to accept reduced or no payment. Cooperation with outside entities was a foreign concept. There are only winners and losers. Apply this to foreign trade, and we find the strange notion that kindly Canada is ripping us off by having a trade deficit. This is mainly due to energy purchases from Canada, and somehow it is unfair that we should have to pay for the energy we purchase. The next logical step from that is the “51st state” annexation nonsense, as if that would somehow abolish the cost of energy. Trade deficits were a problem in the mercantilist age, when the supply of currency was limited by gold reserves. In the age of fiat currency (or even the 1930s-1960s era fractionally gold-backed currencies), that is no longer an issue, since each nation has means of increasing its money supply in proportion to national production.

If anything, free trade is unfair in favor of the U.S., since it has a much larger market and is in less need of protectionism, and the dollar is the world’s reserve currency, enabling the U.S. to increase its money supply by a much greater margin without causing as much inflation, since there is a global market for dollar buyers. Blinded by his ignorance and sense of grievance, the Orange Tyrant is sabotaging a game the Americans are built to win.

We can find other examples of economic illiteracy, such as the notion that U.S. export products should not have VAT applied (even though it is applied to all other products, including the domestic products of the receiving country). Exhaustively pointing these out would miss the big picture, namely that economics is not what is at stake here, for the Orange Tyrant has no understanding of macroeconomics at all. We see this in the destructive cost-cutting measures he applies to the federal government, as if this were analogous to a household economy or private business. Again, in his private business he would have “cheap attacks” (see Cohen, Disloyal, pp. 154-163, where he bought cheap paint against the vendor’s suggestion and then blamed the vendor) to reduce cost by sacrificing quality. He does not comprehend that “efficiency” means doing more with less, not less with less. Much less does he care that his first term tax cuts were among the biggest drivers of deficit expansion this past decade. This hypocrisy is not unique to the Orange One, for Republicans have long driven up deficits with tax cuts for the rich, only to later develop a “conscience” about the debt and make noble sacrifices of programs that help the less fortunate.

As with the tariffs, we must go back to pre-Keynesian notions, in this case that thrift is a virtue for the national government. On the contrary, deficit spending with bond issuance is a means of increasing the money supply and stimulating growth, with a particularly profitable multiplier effect when spending is related to productivity, as in the funding of scientific research, or adding spending power to the working class, as with various social programs. As long as the growth in money supply is kept proportionate to productivity, i.e., debt is manageable as a percentage of GDP, then deficit spending is not only tolerable but beneficial.

The dumb cuts made to programmatic spending and personnel, without regard for actual productivity of these persons and programs, are economically harmful. We have seen that DOGE assesses “waste” simply in terms of programs they do not like, for political or ideological reasons. In some cases, such as the cutting of foreign aid and biomedical research, they are hopelessly short-sighted. The draconian measures are made necessary by an a priori commitment to cut spending by a predetermined amount, say $1T or $2T per year, in order to finance tax cuts for the rich. Their “fiscal responsibility” has them be generous toward the wealthy and frugal toward the poor, even to the point of making false accusations of waste and fraud in the programs that sustain them at much lower cost per person than the proposed tax cuts that chiefly benefit a few. Again, this is motivated by an economically illiterate view of the national budget as a household budget that must be balanced, without regard for the monetary policy role of government. It is made especially perverse by identifying the national interest with personal interest, namely of the billionare class that has the Tyrant’s ear. It should be obvious that thrift is an insincerely held virtue; the banks in 1990 imposed a humiliating constraint on his extravagant spending to a mere $450K per month in exchange for bankruptcy-avoiding loans. He subsequently claimed losses in 1995 that would exempt him from income tax for 18 years, even though he only paid half the debt.

In both the tariffs and the thrift measures, the Orange Tyrant enjoys the exercise of arbitrary power. He can bring large institutions and constituencies to heel by the mere threat of exercising such power, and extract concessions from them in exchange for exceptions to his tariffs or budget cuts. The love of power and its exercise may take precedence even over the ostensible motivations of grievance and thrift. The grievances, after all, are often directed at those who have slighted him or opposed his rise to power, while the desire for thrift often disguises a desire to punish ideological opponents, such as academia, NGOs, and the media.

It would be a mistake to search for a master plan behind any of this. The ever-shifting targets are reflections of an unfocused, impulsive, reptilian mind. There is no deeper personality to be found. Hurt whatever has hurt you. Strike quickly. Threaten the weak. Make them beg. These visceral impulses have led the egomaniac throughout his business career. The so-called “deals” he makes are not the result of negotiation, at which he is hopelessly inept, due to his unwillingness to learn about anything, but are simple acts of extortion. We see this in all of his so-called foreign policy dealings, which is why he sides with the stronger party (Israel, Russia) against the weaker (Gaza, Ukraine), since only the latter can be extorted. This is also why he attacks long-time allies, but only those he perceives as weak. Gangsters don’t believe they should have to pay full price for anything. The desire for power, not thrift, is the prime motive.

A gangster does not need to understand how businesses work. He only needs to know how to threaten businesses into doing what he wants in order to reap the profits of their resourcefulness and efficiency. If a gangster finds himself at the head of a government, he does not need to understand how government works, if he views government merely as an instrument for implementing threats. It would be a mistake to look for any coherent plan or policy agenda in a mind that is aggressively ignorant and clearly does not understand basic things about the workings of the national economy, international trade, or government agencies. A more fruitful use of intellectual effort would be to examine how the United States arrived at a position that it should consider a palpably ignorant, malignant narcissist as the lesser evil in a presidential election. The shamelessly illegal actions of the current president require no deeper analysis than those of a toddler with no impulse control and no understanding or care about the consequences of his actions on others. The fact that millions of constituents are unaware of this illegality attests to a deficiency of civic education, but even more educated people may be misled by some vague understanding of so-called “unitary executive” theory. As we shall see, the legally defensible versions of this theory fall well short of the near-absolute monarchism espoused by the incumbent president, not out of any theory, but out of sheer ignorance and an insatiable demand for obedient, unquestioning loyalty.

Reviewing some of the controlling precedents, we might begin with U.S. v. Perkins, 116 U.S. 483 (1886), in which a unanimous Supreme Court affirmed “that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.” This applied only to such officers that were appointed by heads of departments, since those heads had no right of appointment independent of Congress.

The President, by contrast, does have appointment power independent of Congress. In Myers v. United States, 272 U.S. 52 (1926), a 6-3 majority ruled it was unconstitutional for Congress to give the Senate “advice and consent” removal power of postmasters, who by statute were appointed by the President. The president in general has appointment and removal power over executive branch officials, except where constitutionally limited. Article II’s statement, “the Executive power shall be vested in a President,” is a granting of power, not just the naming of a department. The President has full power over the executive branch except where constitutionally limited.

The Constitution places limits on the President’s appointment power. “Principal officers” must be confirmed by the Senate. “Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law or in the heads of departments.” This does not enable Congress to limit the President’s removal power of such officers that he may appoint, nor does it allow Congress to grant itself any share in the power of removal of executive officers, e.g., by the “advice and consent” of the Senate. Nonetheless, whether Congress can “condition the [President’s power of removal] by fixing a definite term and precluding a removal except for cause will depend upon the character of the office.”

This strong view of the president’s removal authority was far from absolute, as it applied only to presidential appointments and did not prevent Congress from statutorily limiting this power to removal for cause for at least some fixed-term offices. Even this much was opposed by reasoned dissents by Justices Holmes and Brandeis, who argued for much more limited removal power.

A fair interpretation of Myers is that federal executive power is completely in the President, with these constitutional exceptions: appointments of officers, treaties, declaration of war and letters of marque and reprisal.

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), a unanimous opinion given by Chief Justice Sutherland held it was constitutional for Congress to limit by statute the President’s power to remove officials of the Federal Trade Commission, so they could only be removed for inefficiency, neglect of duty, or malfeasance. This was because their functions are of quasi-legislative and quasi-judicial quality, not executive.

Officers of the United States are distinct from mere employees of the United States. The latter have no federal executive power by which they may compel anyone to do anything. Buckley v Valeo, 424 U.S. 1 (1976) defined that any appointee exercising “significant authority” pursuant to the laws of the United States is an ‘Officer of the United States.’ Non-officer civil service employees may, no less than private sector employees, have legal protections from termination or remedy for wrongful termination, and may have additional protections by statute. By current law, they can be terminated by heads of agencies or their subordinates, not by the President nor by Rasputin, and even then only for cause or for reduction of workforce, under strict criteria depending on status.

In Bowsher v Synar, 478 U.S. 714 (1986), a 7-2 majority ruled that Congress cannot give itself the power of removal, except by impeachment, of an executive officer. Such removal power would make that officer an agent of Congress, in which case he cannot control how laws are executed, a power that is denied to Congress.

In Morrison v Olson, 487 U.S. 654 (1988), a 7-1 Court (with Justice Scalia dissenting) held that the Ethics in Government Act of 1978 did not violate the separation of powers by establishing an “independent counsel,” since this office did not impermissibly interfere with the functions of the executive branch. This was an “inferior officer,” since she could be removed by the Attorney General, though she could act independently of him. She had investigative and prosecutorial powers, but could not formulate policy for the Government or Executive Branch.

This official was appointed by a specially created court; there was nothing incongruous about this, since courts sometimes appoint private attorneys to act as prosecutor for judicial contempt judgments. Consistent with Bowsher, the removal power is kept in the executive branch, by action of Attorney General, and only for good cause. No congressional approval is required for removal, though it is subject to judicial review. This is analogous to Humphrey’s Executor.

Yet the Court in Morrison reinterprets Humphrey’s Executor, finding the ruling depended not so much on categorizing an office as quasi-legislative or quasi-judicial, but rather that “it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will.” Analysis of functions is relevant only to determine whether they impede President’s ability to perform his constitutional duty (execution of the laws). Even though the independent counsel is “executive” as a prosecutor, she has limited jurisdiction, tenure, and no policymaking authority. The “good cause” removal condition does not burden the President in the execution of his Article II powers, for it allows counsel to be terminated for failing to faithfully execute the the laws.

Justice Scalia in his dissent argued that Article II intends to vest all the executive power in the President, but such an argument must reckon with (1) the written Constitution itself, which expressly grants some executive powers to the other branches, e.g. Congress’s power to declare war, and (2) the prior conceptions of the Framers, many of whom, believing in limited government, clearly did not intend for the executive power of a republic to be coextensive with that of an absolute monarch. Thus, the scope of Scalia’s “all,” if it is not to be problematic by his own originalist standards, should be confined to whatever executive power is possessed by the federal government, which is constrained by the Constitution and by legislation, insofar as faithful execution of the laws must have reference to law. Unitary executive theory would simply mean at most that whatever executive power exists in the federal goverment, save for enumerated exceptions, must be vested in the President. Any construction that granted the President any conceivably “executive” power whatsoever would be scarcely distinguishable from non-republican monarchies.

More recently, in Seila Law LLC v Consumer Financial Protection Bureau, 591 U.S. __ (2020), the Court held that Humphrey’s Executor was not applicable to the CFPB, which had overtly executive powers including the issuance binding decisions in administrative proceedings. “Unlike traditional independent agencies headed by multimember boards or commissions, the CFPB is led by a single Director, [12 U.S.C.] §5491(b)(1), who is appointed by the President with the advice and consent of the Senate, §5491(b)(2), for a five-year term, during which the President may remove the Director only for ‘inefficiency, neglect of duty, or malfeasance in office’…” The only other independent agencies with single directors, such as the Social Security Administrator, were recently established and had their protection from removal contested, so they hardly served as a historical precedent. Arguably, concentrating power in a single unelected individual not subject to removal is contrary to Constitutional design. The removal protection of the CFPB Director was held to be unconstitutional, but this was severable from other provisions establishing CFPB and its authority, which were allowed to stand.

It may be noted that all the cited precedents on unitary executive theory have to do with the appointment and removal powers, and the extent to which these may be limited, even to the President. Were it not for the Appointments Clause, it would be unquestionable that the president could appoint or remove any officer of the United States in the executive branch. The Constitution does not have a pure separation of powers, and the exceptions are numerous and often deliberate, either as a negotiated compromise or a principled attempt to impose checks and balances. Apart from these exceptions, however, we should forcefully assert, as did Scalia, the separation of powers, which the Framers regarded as the safeguard against tyranny, making possible a government of laws rather than men. The basic thought behind unitary executive theory is that there should be no official or group of officials with federal executive power who are not accountable to the only elected executive, namely the President, in whom all federal executive power (save the Constitutional exceptions involving other branches) resides. (We exclude the Vice President, who, though elected, has no defined executive powers, and his only constitutionally prescribed function is legislative, another exception to the separation of powers.) Even the most strenuous version of this theory could credibly hold, at most, that the President has power of removal of all officers in the executive branch whatsoever, with or without cause.

None of this has anything to do with using “executive orders” to create, revise or abrogate the law. Nor to impound congressional appropriations. Nor to shut down Congressionally created agencies or strip them of personnel and facilities to the point that they are unable to perform their Congressionally prescribed functions. All executive power is to be in the service of the law by faithfully executing it. But faith of any kind is a foreign concept to the current executive.