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Ben Sasse’s Amazing Flip Flop On Executive Power

When Ben Sasse ran for the Senate in 2013–14, he postured as a so-called “constitutional conservative.” Early in his tenure in the Senate, Sasse was hailed as an independent, conservative voice in the GOP. That reputation carried over into the early days of the Trump Administration when Sasse would occasionally post sad tweets that mildly criticized the former TV reality star who happened to occupy the office of the presidency.

During the Obama Administration, Sasse — like most self styled “constitutional conservatives” of that era — was an outspoken critic of Obama’s use of executive orders. On December 17, 2015, Ben Sasse issued the following statement on executive power. I hereby post the most pertinent excerpts:

“Today I would like to propose a thought experiment.

Imagine President Trump has been propelled into the White House with 300 electoral votes, having won mainly by the force of his personality, by calling BS on this town, and by his promise to ‘‘get things done’’ by acting unilaterally.

The first 100 days are huge.

He signs an order to turn the Peace Corps into stone masons to build a southern wall. He shutters the Department of Education, and by Executive order, he turns the Department of Interior into the classiest oil company the world has ever known.

What happens next? Would those who have stayed silent about Executive overreach over the last 7 years suddenly find religion? After years of legislative atrophy, would Congress spring into action and remember its supposed power of the purse?

And what about the Republicans? After having raged against a supposedly lawless President, would many suddenly find that they are OK with a strongman President, so long as he is wearing the same color jersey they are? He may be a lawless son of a gun, some would say, but he is our lawless son of a gun. Would the end justify the means?

The way that Congress thinks and talks about Executive power over the last few years has almost been this sophomoric. It has been based overwhelmingly on the party tag of whoever happens to sit in the Oval Office at any given moment….When your highest objective is advancing partisan lines on a map, it is easy to forgive a President who oversteps his authority, so long as he is your guy and the one with authority is in your party.

I would suggest that this is the entirely wrong way to think about this issue.”

As it turned out, we all have had a chance to conduct Sasse’s so-called “thought experiment” in the real world since Trump managed to get “elected” president in November 2016. Since he has been in office, Trump has been very aggressive in his use of executive power and is on pace to far exceed the number of executive orders issued by President Obama.

Perhaps Trump’s most extreme abuse of executive power was when he declared a so-called “national emergency” at the border and began to spend taxpayer money to build his wall. (Remember when Trump promised over 200 times that Mexico was going to pay for the wall?) This is an egregious abuse of executive power since Congress alone has the power of the purse and Congress had rejected an appropriation for the wall to end Trump’s government shutdown.

Congress responded to Trump’s abuse of power by blocking Trump’s declaration of a “national emergency.” Unfortunately, Trump vetoed the bill. In the Senate, twelve Republicans voted to block this phony national emergency. However, Sasse violated his former “principles” by voting to allow Trump to spend taxpayer money by executive fiat.

Trump isn’t done spending taxpayer money without an appropriation from Congress. In response to recession fears, Trump’s economic advisers would like to cut capital gains taxes by executive order by indexing capital gains tax rates to inflation. What this means is that Trump wants to jam through a $100 billion deficit financed tax cut for the wealthy by executive fiat — rather than an act of Congress. Approximately 86% of the benefits of this contemplated tax cut would go to the top 1%. Can you feel the populism?

The Bush 43 Administration considered a similar scheme but decided it was illegal. It should be noted that William Barr was the attorney general in 1992 when the Bush Justice Department advised the elder Bush that he lacked the power to cut taxes by executive order.

It will probably came as no surprise to many of you to find out that there is support from the Trump rubber stamp Republicans in Congress for this tax cut for the rich by executive fiat. On July 30, 2019, twenty one Republican Senators signed a letter calling for indexing the capital gains tax rates to inflation. Interestingly enough, none other than Ben Sasse was one of the authors of this letter.

When I ran for Congress in 2014, Ben Sasse told me that he wasn’t a political junkie and that he believed there were more important things in life than politics. Obviously, Sasse was never a “constitutional conservative” in the first place or he has sold out to get re-elected. Former Obama adviser Dan Pfeiffer said it best: “The only silver lining to the dark cloud of the Trump era is the daily reminder of how full of shit conservative critics of Obama were.”

I’m a trial lawyer, a Democratic activist and a sports fan.

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