Adam J. White: A republic, if we can keep it

The problem with this solution is laid out in the Government Accountability Office’s legal analysis of Trump’s withholding of $391 million in Senate-approved aid to Ukraine. The move violated the Impoundment Control Act, the GAO insisted. Congress had appropriated the aid, and the president had no authority to ignore that decision—at least without simultaneously alerting Congress to his plan, as the statute requires. With an impending acquittal, the Senate is saying to Trump and all future presidents that they can ignore Congress’s appropriations decisions without consequence. Trump can withhold or spend money as he likes—even if Congress has already said otherwise.

In fact, he was already doing so in other ways. When Congress refused the president’s request for funds to build a wall on the southern border—notwithstanding a three-month government shutdown with which the president tried and failed to force lawmakers’ hand—Trump plundered other pots of appropriated funds to do what he wanted anyway, an action declared illegal by a federal judge.

Next on Philbin’s list is lawmaking. Congress can always pass legislation that confines the president’s discretion. It makes loads of laws—criminal laws, antidiscrimination rules, constraints on monopolies, environmental restraints on businesses, and so on. The Constitution gives the president veto power, but if a bill passes anyway, the president is obliged to “take care that the laws are faithfully executed.” While a president cannot reasonably enforce every potential violation of the law, Trump cannot, under a system of separated powers, affirmatively violate laws himself. Yet for Trump, the GAO determined that he did just that: treated the Impoundment Control Act as optional—not binding.

One doesn’t have to dig too deep to find other examples. Trump’s team kept the whistle-blower complaint from Congress as well, despite a clear statutory obligation to hand it over. And Trump had the backing of the Justice Department for this maneuver. Federal-government lawyers’ apparent lack of independent judgment and fidelity to the rule of law make it particularly hard for Congress to expect presidents to respect its laws from now on.

As for Philbin’s third option, which derives from the Senate’s constitutional power to give or withhold consent for a president’s appointment of federal officers and judges, he said that Congress “can refuse to confirm his nominees.” But that threat works only if the president submits his nominees to the Senate for consideration. Trump has repeatedly flouted any expectation that the presidential appointees tasked with making government policy will be vetted in the manner spelled out in the Constitution.

David A. Graham: Here’s What Trump Has Been Up to While Americans Have Been Distracted by Impeachment