The Joke

Let me tell you a joke.

A couple of weeks ago, I submitted a program to Osher Lifelong Learning Institute (OLLI), a program with a relationship with the University of Rhode Island. The topic of my program is “The Constitution as Applied.”

Feel free to laugh now.

The idea was to breathe some life into our foundational document that was ratified in 1789, or 236 years ago. This document has been amended 27 times, or 28 if the Equal Rights Amendment is finally formally adopted.

I had the quaint notion that it would be interesting to examine how parts of the Constitution were applied to issues that impact our lives.

Many of us know what happened in a given case. For example, we know about the chaos that occurred once Dobbs v. Jackson Women’s Health Center overturned Roe v. Wade and left access to abortions to the states.

What I think is less well known were the Constitutional assumptions and principles that were at stake in these cases: health care, privacy, autonomous liberty interests, constitutional interpretation, stare decisis, etc. Few cases are about only one issue.

My hope is that understanding all the components of a constitutional case will help all of us to be informed, thoughtful citizens.

However, events of the last three weeks have brought in question any relevance my course might have.

For instance, we’ve seen the Executive direct a temporary appointee (who also has the best high school graduates to assist him) to ravage the “deep state” and eliminate fraud, waste, and abuse in a wide swath of government departments, agencies, and programs.

Key point to consider here is that these programs were established by the Legislative Branch and are administered by the Executive, who has the clear constitutional duty to ensure “that the laws are faithfully executed.”

To simplify, Congress enacts legislation to establish a specific program for a specific purpose. The Congress provides funds, via their power of the purse, to adequately fund this program. The Executive branch (i.e., the president, his advisors, and those tasked with operating this program) is required to implement the program consistent with the direction provided by the program’s enabling legislation.

So in this example, under the Constitution, the legislature has the authority to pass legislation thought to be in the public interest, set program funding levels, and appropriate funds to operate the program. The executive’s only duty is to establish and operate the program with the funds provided, and ensure that the program effectively and efficiently operates.

That’s it. The president and all of his men have no authority to sua sponte interfere with the performance of any program in fulfillment of its mission. The executive does have the authority to monitor, audit, and modify procedures under which the program operates. It can work to root out waste, fraud, and abuse. Those are legitimate management functions.

But that ain’t what’s going on here.

Instead, the Felon-in-Chief unleashed his flying monkey appointee, who in turn brought minion coders rather than auditors to uncover “corruption.” The only corruption evident after over two weeks of this nonsense is the work of the appointee himself and his boss.

The flying monkey appointee, Elon Musk, is – and I cannot stress this enough – INCOMPETENT to perform any audit or evaluation of any department, agency, or program in the entirety of the federal government.

The insulting part of all this is that they’re not even trying to make this look like a serious attempt to perform their professed audits. This is an Elon Musk ego sized middle finger to all of us, especially those who receive assistance from these programs.

He has rooted around our private data to do God knows what with it. Call me a cynic but someone’s going to make big bank with this stuff. And since Tesla sales are dropping….

In questions by the assembled media in the Oval Office this week, Musk said:

“I don’t think there’s been, I don’t know … a case (of) an organization (that) has been more transparent than the DOGE organization,”

“If the bureaucracy is in charge, then what meaning does democracy actually have? … It does not match the will of the people, so it’s just something we’ve got to fix.”

I swear that irony is lost on these guys. An unelected temporary bureaucratic appointee shredding programs, agencies, and departments created and funded by the Congress, and firing hundreds if not thousands of federal employees is doing this to preserve and protect our democracy?

And I can’t let this tidbit go without comment. Evidently days after assuming his duties, Musk told someone in the White House that he uncovered the insidious plot to send $50 million worth of condoms to Gaza. This claim was repeated by the White House press secretary on January 28.

Musk even affirmed that claim on his son X’s social media platform when he reposted this story with the comment, “Tip of the iceberg.” You just can’t make this stuff up.

At his ad hoc presser in the Oval Office, Musk was asked about this claim and asked to respond to the Fact Check that the condoms in question did not go to Gaza but instead went to Mozambique to prevent the spread of AIDS. And Musk responded:

“Some of the things that I say will be incorrect, and should be corrected … So, nobody’s going to bat a thousand. I mean, any – you know, we will make mistakes, but we’ll act quickly to correct any mistakes.”

The false claim was out there for two weeks before, in response to a direct question, Musk acknowledged the falsity of the claim. Bottom line, when the rubber hits the road you can’t trust these guys.

And the Felon-in-Chief, on February 11, doubled down by issuing an Executive Order, no doubt expanding his view of governing by royal edict, and directed the entire Executive Branch to comply with Musk and his minions.

A component of the E.O. is this mandate that “agencies will be able to hire no more than one employee for every four employees that depart from federal service,” with exceptions for areas involving public safety.

This sounds very Muskian to me. Remember that when he acquired Twitter and renamed it after his youngest son, he fired over half the Twitter staff in the first two weeks. Geez, that worked out so well if you’re into intellectual and moral toxic goo.

Musk was so excited by this presidential vote of confidence that he sent emails firing 200 employees in the Small Business Administration.

Particularly concerning is his attempt to access the $6 trillion payment system in the Treasury Department. Attempting to allay people’s concerns, we were told that Musk and his minions had “read only” access. Why they needed that level of access, or any access to this information for that matter, is anyone’s guess.

But it’s not true. The key to telling a convincing lie is to ensure that all parties to the lie are on the same page. It would be unfortunate if one of the parties doesn’t continue the lie.

In court filings in the matter of Musk’s access to this Treasury system, the Government’s attorneys, in their court filings, admitted that Musk and his associates had “read/write access” to these programs. Oopsies! But we’re assured that this access was only for a short duration.

Right.

A bright spot in this political shop of horrors is the government’s inability to convince the courts that the president and his appointee (and the appointee’s appointees) have the total, complete, and absolute authority to commit these unconstitutional acts!

Litigants have descended on the courts throughout the country seeking judicial remedy to the unconstitutional agency abolishing, funds freezing, and department destroying actions taken on behalf of the president.

So far, these actions – skirmishes, really – have been focused on whether the government could prevent a stay on their activities until a hearing on the merits of the underlying activities of all the president’s men. Like their counterparts 50+ years ago, the president and his gang are losing in the courts.

In a case brought in the Federal District Court in Rhode Island, the Feds, who sought a continuation of its funding freeze until a hearing on the merits regarding the underlying dispute – the arbitrary funding freeze impacting programs and recipients across the country. They lost in a 13 page opinion, denying the attempt to continue the freeze and ordered the resumption of the funding stream.

Evidently, there was no resumption of the flow of funds, requiring the plaintiffs (23 state attorneys general) to go back to court with a 124 page pleading ratting the government out. The district court judge issued another order stating that if his orders were not followed, someone could be held in civil contempt. If it comes to that, I have names I’d like to suggest.

The government appealed, on an expedited basis, to the federal circuit court in Boston. In a matter of hours, the circuit court issued a two-page decision that could be summed up in two words: Dee nyed!

This state of affairs has put Trump in a bit of a tizzy where he said that maybe they’ll need to “look at the judges.” He also issued an Executive Order commanding all members of the Executive Branch to cooperate with Musk and DOGE.

Ultimately there will be a hearing on the substance and merits of these matters in less than two weeks. My money’s on the plaintiffs.

After that there will be appeals of this and other similar cases, requests for stays on any adverse decision until it rises to the Supremes where, as we have seen, anything can happen.

Assuming that the Justices of the Supreme Court stayed awake on the day they were taught law in law school, they will decide in (all?) the plaintiffs favor, then what?

Let’s game this out. Trump can either: 1) go the legally permissible route, work with Congress, conduct a legitimate program evaluation and audit, and ask for legislation to take corrective action; or 2) tell the court to take its judgment, fold it five ways, and taking care to avoid paper cuts shove that judgment where the moon don’t shine.

My guess is that Trump will be inclined to select option 2. There’s been many voices raising the specter of a “constitutional crises.” Obviously those people are wrong. We’re already in a crisis.

Again on February 11, when Trump was asked how he felt above the lack of success in the courts, he said he’d follow the law. But then he added,

“It seems hard to believe that judges want to try and stop us from looking for corruption … We want to weed out the corruption, and it seems hard to believe that a judge could say, ‘We don’t want you to do that.’ So maybe we have to look at the judges, because that’s very serious. I think it’s a very serious violation.” 

Violation? What violation? The sparkle magic violations careening in his own head? Or was this a coded message to unleash the MAGA hounds? Whatever it is meant to be, it is a clear challenge to the judiciary’s main function to uphold the rule of law.

But Trump never met a law he liked. Or an adverse court decision or verdict delivered against him. You’d think he’d feel isolated in a job where he and others working for him swear to uphold the law.

Well you’d be happy to learn that he found a kindred spirit.

Eric Adams is the Mayor of New York City. On September 26, 2024, the United States Attorney for the Southern District of New York unsealed an indictment charging Adams with taking bribes and soliciting illegal (foreign) campaign contributions. And theft of public matching funds related to the illegal foreign campaign contributions.

Adams was elected mayor in 2021, and took office on January 1, 2022. It was during his time as mayor that, allegedly in exchange for a monetary benefit, pressured the New York Fire Department to allow occupancy of a building that would not been approved under the department’s Fire Protection Plan.

On February 10 of this year, acting Assistant Attorney General Emil Bove released a memo to the federal prosecutors in the SDNY ordering that they dismiss the charges without prejudice against Adams. So what was the reason? Was Adams clearly a falsely accused innocent humble public servant? From Bove’s memo:

“The Justice Department has reached this conclusion without assessing the strength of the evidence or the legal theories on which the case is based…”

WTF?! Seriously, WT actual F?

When I first read this I thought it was a prank. But given that Bove doesn’t look like he’s a prankster, what else could it be? Oh wait:

“It cannot be ignored that Mayor Adams criticized the prior administration's immigration policies before the charges were filed, and the former U.S. Attorney's public actions created appearances of impropriety…” Really? Isn’t there just the tiniest bit of projection here?

And the memo claims that this prosecution:

“has unduly restricted Mayor Adams' ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the policies of the prior Administration."

Interim USA Danielle Sassoon declined to follow Mr. Bove’s directive and subsequently resigned. And in spite of what will be said on Musk’s son’s website, Ms. Sassoon is a member of the Federalist Society and once clerked for Justice Scalia.

No liberal symp is she!

Moreover, two line prosecutors at SDNY were put on administrative leave pending review by the DOJ’s Office of Professional Conduct. Ms. Sassoon is also targeted for review.

Finally, and this is really rich, Bove sent the order to dismiss to Main Justice’s Office of Public Integrity, whereafter two of the Office’s top attorneys also resigned. They too will be reviewed by the OPC.

There hasn’t been this much iron fisted disregard for the rule of law since the Saturday Night Massacre during Nixon’s presidency.

This dismissal is a legal Faustian, or should I say Trumpian Bargain. Trump orders the charges to be dropped and in exchange Adams agrees to support Trump’s apprehension and deportation policies. Oh, and Adams will need to effusively say “Sir” any time he addresses Trump.

So far, because this Gang Who Can’t Follow The Law can’t get anyone to file the damn Motion to Dismiss, the charges still hang over Adam’s head. No doubt he’s thinking, “with friends like these…”

This is the Brave New World we find ourselves. Trump is trying to punk the two “co-equal” branches of government while running roughshod over the duly created, properly funded, and legally staffed departments, agencies, and programs. There is no regard for legal protections or basic due process in the exercise of Musk’s dodgy DOGE activities.

There is no valid evidence sited necessitating this approach to the dismantling of policies and programs that millions of Americans from all walks of life, in all corners of our nation, rely on to conduct business, maintain their health, eat safe food, and keep a roof over their heads.

There clearly is no regard for basic due process or the rule of law. The basis of the dismissal of Adam’s charges is indefensible. The way it was dismissed is absurd. The total disregard of legal procedure and an obliteration of the rule of law is outrageous.

And this is only one case. Better buckle up buttercups!

If Jimmy Breslin wrote a novel with these facts, it would be hilariously wacky! Tragically, this is our unfunny reality.

So the joke on me is that by the time I get to teach my course, it may need to be retitled, “The Constitution, a Relic From Our Past.”

On the other hand, if I want to teach about “dead” subjects, I could always switch the course to Latin.