Transportation Secretary Sean Duffy has been one of the vociferous defenders of President Donald Trump’s expansive use of government authority, withholding billions of {dollars} in federal funding to states and dismissing protests of the White Home’s boundary-pushing conduct because the gripings of “disenfranchised Democrats.”
However courtroom paperwork reviewed by ProPublica present {that a} decade in the past, as a Home member, Duffy took a drastically totally different place on presidential energy, articulating a full-throated protection of Congress’ function as a test on the president — one which resembled the very arguments made by audio system at latest anti-Trump “No Kings” rallies across the nation.
In an assertive, completely researched 2015 authorized temporary, Duffy, then a Republican consultant from Wisconsin, detailed the historical past of America’s creation in response to absolutely the energy of the English crown, invoking the Magna Carta and the Founding Fathers as he made the case for the separation of powers.
“Simply as Congress might not bestow upon the President Congress’s personal unique energy to make, or to repeal, federal regulation,” Duffy argued, citing a 1998 courtroom determination, “it could not bestow upon the Government its personal unique energy of the purse.”
The temporary went on to quote James Madison’s account of the Constitutional Conference, the place there was “unanimous settlement that Congress, not the President, ought to management the purse.”
On the time, Duffy filed the friend-of-the-court temporary in help of a lawsuit difficult the constitutionality of how the Shopper Monetary Safety Bureau will get funded. Duffy, who chaired the Home Monetary Companies Subcommittee on Oversight and Investigations, maintained that the company’s distinctive funding system — its {dollars} come instantly from the Federal Reserve System relatively than by a congressional appropriation — improperly bypassed lawmakers’ authority.
The 39-page temporary was filed underneath Duffy’s title together with a nonprofit group aligned with the Republican authorized activist Leonard Leo and submitted by a preeminent conservative lawyer. At present, it stands in stark distinction to Duffy’s personal actions as transportation secretary within the first yr of Trump’s second stint within the White Home. Certainly, his makes an attempt to limit congressionally appropriated transportation funding throughout all 50 states this yr have been condemned by a congressional watchdog and federal judges, leading to stinging public rebukes from the opposite branches of presidency that echo his personal 2015 place.
Peter Levine, a civics professional at Tufts College, mentioned that whereas it might be that Duffy’s views on presidential energy have advanced over time, his obvious flip-flopping on one thing as elementary because the that means of the Structure raises the prospect that Duffy might “simply be enjoying a sport for energy.”
“The Structure is a promise to proceed to use the identical guidelines and norms over time to everyone,” he added. “When political actors utterly ignore that, and simply go after their very own factor, I don’t suppose the Structure can truly perform.”
In response to questions, a Division of Transportation spokesperson requested for a duplicate of Duffy’s temporary. However after ProPublica offered it, the spokesperson stopped responding. A message despatched to a quantity listed for Duffy hasn’t been returned.
The growth of government energy has been an indicator of Trump’s second administration. The president issued a whopping 214 government orders between Jan. 20 and Nov. 20, based on the The American Presidency Undertaking on the College of California, Santa Barbara. In each “quantity and ambition,” the orders and ensuing actions are “exceeded on these dimensions within the final century solely by Franklin D. Roosevelt,” one Harvard Regulation Faculty professor not too long ago famous.
Duffy has cited a few of these directives as he has withheld congressionally authorized transportation funds. And administration officers have defended doing so, claiming {that a} post-Watergate regulation asserting Congress’ energy over spending improperly restrains the president’s authority.
However a congressional watchdog and the courts have taken situation with that expansive interpretation of federal authority.
For Duffy, the primary occasion got here in Could, when the Authorities Accountability Workplace, a nonpartisan arm of Congress, concluded that the DOT had violated the regulation when it halted funds in February from a $5 billion fund for electrical automobile charging stations that Congress authorized underneath former President Joe Biden’s bipartisan infrastructure regulation.
“The Structure particularly vests Congress with the ability of the purse,” the congressional watchdog wrote, arguing that the funds ought to resume. “The Structure grants the President no unilateral authority to withhold funds from obligation.”
A White Home spokesperson referred to as the GAO’s opinion “incorrect” when it was issued and argued that the DOT was “appropriately utilizing” its authority.
In June, a federal choose in Washington ordered transportation officers to elevate the pause after a handful of states sued Duffy and the DOT, writing that when the manager department “treads upon the desire of the Legislative Department,” it’s as much as the courtroom “to remediate the scenario and restore the steadiness of energy.”
The federal government has moved to dismiss the lawsuit, writing that it had revamped the grant software course of for the charging station cash and likewise that the states’ constitutional considerations had been unfounded, since one other a part of the Structure “vests the President with broad, discretionary authority to ‘take Care that the Legal guidelines be faithfully executed.’” The swimsuit is ongoing.
Individually, a federal choose final month sided with states that had challenged an try by Duffy to situation billions of {dollars} extra in federal funds for freeway upkeep and different core transportation features in change for serving to the administration detain immigrants.
“Ought to Congress have wished, it may have tried to entice State cooperation with federal civil immigration enforcement by way of lawful means, and it may have sought to empower federal businesses to help it in doing so,” John McConnell Jr., the chief choose of the U.S. District Courtroom in Rhode Island, wrote in a Nov. 4 determination blocking Duffy’s actions.
But it surely didn’t, he mentioned, and as a substitute administration officers had “transgressed well-settled constitutional limitations on federal funding circumstances.”
“The Structure calls for the Courtroom put aside this lawless conduct,” he wrote.
The lawsuits are amongst a whole lot of authorized actions this yr difficult the constitutionality of the White Home’s varied actions, together with its makes an attempt to halt the disbursement of a whole lot of billions of {dollars} in authorities spending that Congress had beforehand authorized.
As for the authorized problem Duffy supported in 2015, it was in the end unsuccessful and the Supreme Courtroom final yr affirmed the constitutionality of the CFPB’s funding mechanism.
But the ruling has not insulated the bureau from the Trump administration, and officers have superior novel authorized theories to realize what Duffy sought a decade in the past. The administration now argues that because the Fed operates at a loss, it has no income to switch to the CFPB.
In consequence, the bureau is being starved. In response to a latest courtroom submitting by authorities legal professionals, it should run out of working funds by early subsequent yr.
