The Trump Era Should Make Libertarians of Us All

By David French

Friday, April 05, 2019

Democrats and many other Trump opponents are thrilled that House Ways and Means Committee chairman Richard Neal has “formally requested” six years of Donald Trump’s tax returns. At last, they argue, Trump will be forced to be transparent. At last we’ll see the financial information that he’s so diligently sought to hide ever since he launched his race for the White House.

Isn’t this good news? Shouldn’t the nation’s chief executive be transparent about his income and business dealings? Perhaps. But “should” is a much different than “must,” and the lawyer and civil libertarian in me immediately wondered about the legal basis for the Democrats’ request. After all, Trump is still an American citizen and entitled to a degree of privacy, and there is no law requiring presidents to release their tax returns. So, on what grounds did the Democrats demand to see his taxes?

Well, it turns out that federal privacy laws contain a rather wide loophole. Congress, which granted taxpayers relatively strong protections from disclosure to other entities, left for itself a nice little out: On mere “written request” from the chairman of House Ways and Means Committee, the Senate Finance Committee, or the Joint Committee on Taxation, the secretary of the Treasury “shall furnish” the requesting committee “with any return or return information specified in such request.”

That’s right. All they have to do is ask. They can have your return, my return, or any political enemy’s return. But don’t worry, the law states that if the return or return information might identify the taxpayer, then it can be provided only when the committee is in “closed executive session.” And we all know that Congress never leaks, and would never dare use private information to launch ruinous politically motivated investigations. After all, there’s nothing but good public servants up on Capitol Hill, right?

As the saying goes, if this is the law, then the law is an a**.

One of the many startling aspects of the Trump era is the extent to which intense political combat has illuminated the sheer number of ridiculous rules and statutes governing this country — including rules and statutes that grant public officials truly vast amounts of discretion. For decades, the federal government has vacuumed up an immense amount of power, doled it out among the various branches of government, and then turned to the American people and said, “Trust us.”

While the current controversy involves Congress’s reservation of a right to take a peek at your life, many others involve its abdication of power to the president. Consider these recent examples . . .

Why is the president able to unilaterally raise tariff rates and essentially tax the American people without congressional approval? After all, Article I Section 8 of the Constitution explicitly grants Congress the power to “regulate Commerce with foreign nations.” Well, as a Vox piece by Tara Golshan nicely explains, Congress has for decades relinquished authority to set tariff rates to the president, using multiple different justifications. Laws such as the Trading with the Enemy Act of 1917, the Trade Act of 1974, and the Trade Expansion Act of 1962 collectively grant the president enormous discretion to act on his own.

Why was the president able to unilaterally ban immigrants from multiple majority-Muslim countries? Because Congress gave the president the power to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” whenever he finds their entry “detrimental to the interests of the United States.”

Relatedly, while there may exist statutes that regulate how a president uses his emergency powers, the National Emergencies Act essentially leaves the definition of an emergency to the president’s discretion. How does he define an emergency? He knows it when he sees it.

And don’t get me started on the bipartisan abdication of congressional authority to declare war. When Trump struck the Assad regime without congressional authorization, he was walking a trail blazed by many presidents before him.

The judiciary shouldn’t be given a pass on all of this, either. One of the prime reasons presidential contests have become so contentious is the Supreme Court’s repeated willingness to improperly interfere in the democratic process, and gather for itself immense power well beyond the  adjudication of enumerated constitutional rights and the coherent interpretation of specific constitutional provisions.

The president not only controls a bloated executive branch, he appoints the members of the excessively powerful judicial branch. And now members of that branch have invented a new kind of power grab: the nationwide injunction, in which the reach of a mere federal trial-court judge can extend beyond the parties before him to the entire nation.

When people ask me, how the Trump era is adjusting my political views, my answer is simple: It’s making me more libertarian. It’s making me more concerned about the fate of the Constitution. I trust the government less, I’m more appalled at its sweeping assumptions of power, and I see more clearly what happens when its leaders — possessed with unwavering self-righteousness — believe that the ends justify the means.

Now the Democratic war against Donald Trump has exposed yet another bad law. Congress can investigate your finances — no matter who you are — for any reason or no reason at all. The fact that Trump is the man currently under the microscope should in no way lessen our objection to such an atrocious policy. Bad laws don’t become good just because they’re used to target people you happen to dislike.