As a congressman, Duffy made an impassioned authorized case in opposition to government overreach. A decade later, judges have used those self same arguments to rebuke him for withholding billions in transportation funding.
By Jake Pearson for ProPublica
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 court docket paperwork reviewed by ProPublica present {that a} decade in the past, as a Home member, Duffy took a drastically completely different place on presidential energy, articulating a full-throated protection of Congress’ function as a examine on the president — one which resembled the very arguments made by audio system at current anti-Trump “No Kings” rallies across the nation.
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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.
“Just as Congress may not bestow upon the President Congress’s own exclusive power to make, or to repeal, federal law,” Duffy argued, citing a 1998 court docket determination, “it may not bestow upon the Executive its own exclusive power of the purse.”
The temporary went on to quote James Madison’s account of the Constitutional Conference, the place there was “unanimous agreement that Congress, not the President, should control 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 Providers Subcommittee on Oversight and Investigations, maintained that the company’s distinctive funding system — its {dollars} come immediately from the Federal Reserve System fairly than by a congressional appropriation — improperly bypassed lawmakers’ authority.
Donald Trump shakes fingers with Sean Duffy within the James Brady Press Briefing Room on the White Home on Jan. 30.
The 39-page temporary was filed underneath Duffy’s identify together with a nonprofit group aligned with the Republican authorized activist Leonard Leo and submitted by a preeminent conservative lawyer. Right now, it stands in stark distinction to Duffy’s personal actions as transportation secretary within the first 12 months 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 12 months 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 skilled 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 basic because the which means of the Structure raises the prospect that Duffy could “just be playing a game for power.”
“The Constitution is a promise to continue to apply the same rules and norms over time to everybody,” he added. “When political actors completely ignore that, and just go after their own thing, I don’t think the Constitution can actually function.”
In response to questions, a Division of Transportation spokesperson requested for a replica 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 a trademark of Trump’s second administration. The president issued a whopping 214 government orders between Jan. 20 and Nov. 20, in response to the The American Presidency Undertaking on the College of California, Santa Barbara. In each “number and ambition,” the orders and ensuing actions are “exceeded on these dimensions in the last century only by Franklin D. Roosevelt,” one Harvard Regulation Faculty professor just lately famous.
Duffy has cited a few of these directives as he has withheld congressionally accepted 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 problem 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 accepted underneath former President Joe Biden’s bipartisan infrastructure regulation.
“The Constitution specifically vests Congress with the power of the purse,” the congressional watchdog wrote, arguing that the funds ought to resume. “The Constitution grants the President no unilateral authority to withhold funds from obligation.”
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A White Home spokesperson known as the GAO’s opinion “incorrect” when it was issued and argued that the DOT was “appropriately using” its authority.
In June, a federal decide in Washington ordered transportation officers to raise the pause after a handful of states sued Duffy and the DOT, writing that when the chief department “treads upon the will of the Legislative Branch,” it’s as much as the court docket “to remediate the situation and restore the balance of power.”
The federal government has moved to dismiss the lawsuit, writing that it had revamped the grant utility course of for the charging station cash and in addition that the states’ constitutional issues had been unfounded, since one other a part of the Structure “vests the President with broad, discretionary authority to ‘take Care that the Laws be faithfully executed.’” The go well with is ongoing.
Individually, a federal decide 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.
“Should Congress have wished, it could have attempted to entice State cooperation with federal civil immigration enforcement through lawful means, and it could have sought to empower federal agencies to assist it in doing so,” John McConnell Jr., the chief decide of the U.S. District Court docket in Rhode Island, wrote in a Nov. 4 determination blocking Duffy’s actions.
Sean Duffy speaks throughout a information convention at LaGuardia Airport in New York on Oct. 28.
Nevertheless it didn’t, he mentioned, and as a substitute administration officers had “transgressed well-settled constitutional limitations on federal funding conditions.”
“The Constitution demands the Court set aside this lawless behavior,” he wrote.
The lawsuits are amongst lots of of authorized actions this 12 months difficult the constitutionality of the White Home’s varied actions, together with its makes an attempt to halt the disbursement of lots of of billions of {dollars} in authorities spending that Congress had beforehand accepted.
As for the authorized problem Duffy supported in 2015, it was finally unsuccessful and the Supreme Court docket final 12 months 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 attain 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 keeping with a current court docket submitting by authorities legal professionals, it would run out of working funds by early subsequent 12 months.
