Under Trump, the Law Is Just a Speed Bump

We thought about giving Bill kudos this morning for correctly predicting that Yoshinobu Yamamoto would be the World Series MVP. But Bill also predicted that the Dodgers would win in six games. Can’t get credit when you are only shooting 50 percent.

Meanwhile, it’s a big week at the Supreme Court, where on Wednesday the justices will hear arguments about the legality of Trump’s sweeping assertions of tariff power. The president is watching closely: The case, he said on Truth Social yesterday, “is one of the most important in the History of the Country.”

“If we win, we will be the Richest, Most Secure Country anywhere in the World, BY FAR,” Trump wrote. “If we lose, our Country could be reduced to almost Third World status.” So no pressure. Happy Monday.

Anyone, Anywhere, for Any Reason at All

by William Kristol

In the 1948 classic, The Treasure of the Sierra Madre, a gang of local bandits confronts American adventurers south of the border. Both groups are in pursuit of the gold treasure of the movie’s title. The criminals demand the cooperation of the Americans, implausibly claiming to be “federales—you know, the mounted police.” One of the Americans (Humphrey Bogart) asks, “If you’re the police, where are your badges?” To which the gang leader ‘Gold Hat’ famously and indignantly responds: “Badges? We ain’t got no badges. We don’t need no badges! I don’t have to show you any stinkin’ badges!”

This exchange is supposed to exemplify the regime of lawlessness that allegedly prevailed south of our border. In the United States, by contrast, it was assumed that the authorities act with the sanction of law. Around here, we carry badges.

That was then. The Trump administration is now. Masked ICE agents seize law-abiding individuals on our cities’ streets. The U.S. military sinks defenseless boats on the high seas. At home and abroad, the administration has ever more brazenly embraced the proposition that they need no law to authorize their actions. The Trump administration believes it doesn’t need no badges.

And so the Washington Post reported Saturday that the Trump Justice Department has told Congress that the administration will continue its lethal strikes against boats with alleged drug traffickers aboard while ignoring the law requiring Congressional approval for ongoing hostilities.

Under the 1973 War Powers Resolution, the president needs congressional approval for any military action that lasts more than 60 days. The attacks on the alleged drug boats began on September 2. On September 4, the administration seemed to acknowledge that the act had triggered the 1973 law, informing Congress that it had conducted the strike and stating an alleged rationale. Since then, there have been over a dozen such strikes and many dozens of people have been killed.

The ongoing military action has now passed the 60-day mark for congressional approval as specified in the law. But the administration has decided the strikes don’t meet the definition of “hostilities” under the law. And so it doesn’t intend to seek congressional approval of the ongoing action. In other words, it intends to ignore the law.

A senior administration official—who spoke on the condition that he not be named—told the Post that because U.S. troops don’t appear to be in direct danger in the ongoing attacks, which are being conducted at a distance on targets that can’t shoot back, the law does not apply. While the War Powers Resolution has a long and complicated history, the administration’s argument doesn’t stand up to serious legal analysis, as these articles at the website Just Security demonstrate, and as NYU Law’s Ryan Goldman carefully explained yesterday on The Bulwark on Sunday.

But all you have to do is consider the implications of the administration’s argument. The Trump administration is basically claiming the right to kill anyone anywhere, with bombs or missiles or drones, for any reason or for no reason, with no evidence provided and no accountability to Congress or the American people. As Brian Finucane, the War Powers Resolution lawyer at the State Department in the first Trump administration, told the Post, this is “a wild claim of executive authority.”

Even congressional Republicans are getting restive. On Friday, Sen. Roger Wicker (R.-MS), chair of the Senate Armed Services Committee, made public two letters he’d sent to the administration along with his Democratic counterpart, Sen. Jack Reed, challenging the administration’s failure to provide legal justifications and other information they’re obliged by law to provide.

But the Trump administration doesn’t take this or other legal obligations seriously. On October 23, Trump was asked about seeking congressional approval for these acts of war. “We may go to the Senate, we may go to the Congress and tell them about it. But I can’t imagine they’d have any problem with it,” he said. He went on to boast, “I think we’re just gonna kill people that are bringing drugs into our country. Okay, we’re going to kill them. You know, they’re going to be, like, dead.”

You know what is, like, dead: The guardrails that protect the rule of law. The Trump administration won’t abide by congressional constraints on the use of military force abroad. It has been demolishing the internal guardrails in the executive branch against presidential lawlessness. And when you put all this together with the use of the military not just abroad but at home, we are well down the road to becoming—to use a term popular in the era of The Treasure of the Sierra Madre—a banana republic.

The Treasure of the Sierra Madre doesn’t end well. Lots of Americans and Mexicans are dead, and the treasure is nowhere to be found.

One hopes that generations of Americans will have the pleasure of watching The Treasure of the Sierra Madre. But one wonders if they’ll be mystified by Humphrey Bogart’s assumption that we’re entitled to expect government officials to act under legal authority. Because we’re the ones who now say that we don’t need no stinking badges.

That won’t end well either.