Duffy's Shift: From Defending Congress' Power to Challenging It

A Shift in Stance: From Defender of Congressional Power to Enforcer of Executive Authority

Transportation Secretary Sean Duffy has long been a vocal supporter of President Donald Trump's broad use of executive power. His actions have included withholding billions of dollars in federal funding from states and dismissing protests against the White House's behavior as the complaints of "disenfranchised Democrats." However, court documents reveal a striking contrast in his past views on presidential power.

A Different Perspective on Presidential Power

In 2015, while serving as a Republican representative from Wisconsin, Duffy took a very different stance. He authored a detailed legal brief that emphasized Congress's role as a check on the president. This position echoed the arguments made by recent anti-Trump "No Kings" rallies across the country.

Duffy’s 39-page brief was filed in support of a lawsuit challenging the constitutionality of how the Consumer Financial Protection Bureau (CFPB) is funded. The brief argued that the agency's unique funding system, which draws directly from the Federal Reserve rather than through congressional appropriation, improperly bypassed lawmakers' authority.

Historical Context and Legal Arguments

The brief referenced the historical context of America's founding, citing the Magna Carta and the Founding Fathers to emphasize the importance of the separation of powers. Duffy argued that just as Congress cannot give the President its exclusive power to make or repeal federal law, it also cannot bestow upon the Executive its own exclusive power of the purse.

He cited James Madison's account of the Constitutional Convention, where there was unanimous agreement that Congress, not the President, should control the purse. This argument was central to his defense of Congress's role in the budget process.

Contrasting Present Actions with Past Positions

Today, Duffy's actions as transportation secretary stand in stark contrast to his earlier positions. His attempts to restrict congressionally appropriated transportation funding have drawn criticism from a congressional watchdog and federal judges. These actions have resulted in public rebukes from other branches of government, echoing his 2015 stance.

Peter Levine, a civics expert at Tufts University, noted that while Duffy's views may have evolved, his flip-flopping on such fundamental constitutional issues raises concerns about his motives. "The Constitution is a promise to continue to apply the same rules and norms over time to everybody," he said. "When political actors completely ignore that, and just go after their own thing, I don't think the Constitution can actually function."

Responses and Reactions

When asked about the 2015 brief, a Department of Transportation spokesperson requested a copy. After ProPublica provided it, the spokesperson stopped responding. A message sent to a number listed for Duffy remains unanswered.

Expansion of Executive Power

The expansion of executive power has been a hallmark of Trump's second administration. According to the American Presidency Project at the University of California, Santa Barbara, the president issued 214 executive orders between January 20 and November 20. These orders are described as "exceeded on these dimensions in the last century only by Franklin D. Roosevelt."

Duffy has cited some of these directives as he has withheld congressionally approved transportation funds. Administration officials defend this action, claiming that a post-Watergate law asserting Congress' power over spending improperly restrains the president's authority. However, a congressional watchdog and the courts have taken issue with this interpretation.

Legal Challenges and Judicial Responses

In May, the Government Accountability Office (GAO), a nonpartisan arm of Congress, concluded that the Department of Transportation (DOT) had violated the law when it halted payments from a $5 billion fund for electric car charging stations approved under former President Joe Biden's infrastructure law. The GAO argued that the Constitution specifically vests Congress with the power of the purse and that the President has no unilateral authority to withhold funds.

A federal judge in Washington ordered transportation officials to lift the pause after several states sued Duffy and the DOT. The judge wrote that when the executive branch "treads upon the will of the Legislative Branch," it's up to the court "to remediate the situation and restore the balance of power."

Additional Legal Challenges

Separately, a federal judge blocked Duffy's attempt to condition billions of dollars in federal funds for highway maintenance in exchange for helping the administration detain immigrants. The judge wrote that Congress could have used lawful means to entice state cooperation but instead, the administration transgressed well-settled constitutional limitations on federal funding conditions.

Ongoing Legal Battles

These lawsuits are part of hundreds of legal actions this year challenging the constitutionality of the White House's various actions, including its attempts to halt the disbursement of hundreds of billions of dollars in government spending that Congress had previously approved.

Legacy of the CFPB Funding Case

Although the legal challenge Duffy supported in 2015 was ultimately unsuccessful, the Supreme Court affirmed the constitutionality of the CFPB's funding mechanism. However, the bureau is still facing challenges from the Trump administration, which has advanced novel legal theories to achieve what Duffy sought a decade ago. The administration now argues that since the Fed operates at a loss, it has no profits to transfer to the CFPB, leading to the bureau being starved of operating funds. According to a recent court filing, the bureau will run out of operating funds by early next year.