It pains me to agree with him in a dispute with a more genuinely conservative figure, but when the guy’s right, he’s right. And he’s right about Sasse finding his spine only when it’s politically convenient.

He is not, however, right about Sasse’s critique being “foolish.”

Let’s back up. If you missed yesterday’s post, Sasse dinged Trump in a statement this weekend for practicing Obama-style pen-and-phone executive unilateralism.

Sasse: “The pen-and-phone theory of executive lawmaking is unconstitutional slop. President Obama did not have the power to unilaterally rewrite immigration law with DACA, and President Trump does not have the power to unilaterally rewrite the payroll tax law.” pic.twitter.com/bcI0Qiia3d

— Zeke Miller (@ZekeJMiller) August 9, 2020

Lots of people, me included, wondered why Sasse wasn’t as much of a stickler about congressional prerogatives last year when Trump declared an emergency and started moving Pentagon money around to try to pay for the border wall. Could it be because he was facing a potentially rough Senate primary challenge from the right back then and is safely past that challenge now?

The president thinks so. And the president is right:

https://twitter.com/realDonaldTrump/status/1292832946077007886

Sasse also declared last fall that there was “terrible stuff” in the White House transcript of Trump’s “quid pro quo” phone call with Ukraine’s president, but in the end he voted not just to acquit Trump at his impeachment trial but not to allow witnesses to testify. How would he have voted on that if he weren’t up for reelection this fall?

Meh, he probably would have voted the same way, knowing that he’ll have another Senate primary eventually. Superficially it feels unfair to dunk on Sasse for electoral calculations since all politicians make them, especially ones as young as him. What grates in his case is that his most memorable speeches as a senator have had to do with how Congress no longer functions effectively. “We need better, more independent leaders” isn’t just political boilerplate for Sasse, as it is with most pols, it’s his whole pitch. (Well, half of his pitch. Abortion and China are his two other hobbyhorses, as you know if you get press releases from his office.) Yet, when given multiple opportunities to go his own way on a big vote that might displease Trump, he put his career first and stayed in line.

He may disdain the Senate but he seems to like the prestige of being a senator enough to consider his deviations from Trumpist orthodoxy very carefully. This weekend’s complaint about “unconstitutional slop” comes at a moment of maximum political safety — Sasse is past his primary, he’s crossing a president who’s likely to lose this fall, he’s rebranding himself as a “constitutional conservative” in anticipation of the party’s ideological pivot next year, and his criticism of Trump has no policy implications that might piss off one side or the other. Eventually he’ll vote no on whatever relief package passes the Senate and burnish his “fiscal conservative” cred too, possibly with an eye to a presidential run in 2024. He deserved a Twitter brushback pitch from Trump for his cynicism.

He replied this afternoon, more tactfully than he did this weekend. “I care about you personally”?

Sasse isn’t wrong on the merits. Whether Trump’s orders are “unconstitutional slop” or just plain ol’ “slop” is less important than the fact that they move the country further towards a model in which Americans look to the president and the Supreme Court for all major policymaking, not to Congress. Down that path lies ruin, say Yuval Levin and Adam White, remembering Republicans’ righteous complaints about Obama’s DACA/DAPA overreach on immigration. What would Democrats say if a Republican president tried changing the law with the stroke of a pen, wondered Ted Cruz in 2014? Well, say Levin and White, here we are:

That is precisely what has now happened, and it is indeed wrong. But so far, most Republicans in Congress seem reticent to say so. As in the Obama years, the president’s party in Congress is all too eager to encourage an executive incursion onto legislative turf.

And thus, one kind of constitutional failure invites another: An absence of the necessary constitutional self-restraint on the part of the presidents is answered with an absence of the necessary constitutional assertiveness on the part of Congress. These are both failings of constitutional virtue.

And they are not the only such failures at the juncture of the two elected branches. They have emerged alongside Congress’s eagerness to delegate its power to administrative agencies and the Senate’s lack of interest in asserting its advice-and-consent powers (as the executive branch fills with “acting” officers in the Trump era just as it did with recess appointments in the Obama years).

Yep. And the hypocrisy goes both ways, of course. Watch below and you’ll find Nancy Pelosi experiencing a very belated constitutional awakening triggered by Trump’s executive orders. As for righties, they’ll end up splitting into two familiar groups on the propriety of his actions — the group that thinks if it was bad when Obama did it then it’s bad when Trump does it and therefore he shouldn’t do it, and the group that thinks if Obama did it then Trump should be allowed to do it irrespective of whether it was bad when Obama did it. Group two is bigger than group one at this point, possibly much bigger. Which is why Levin and White are worried, rightly.

Exit question via Axios: Did Trump try to set a “tax trap” for Biden with his executive action on the payroll tax? The idea might have been to bait Biden into declaring that he’ll undo Trump’s deferral of the tax as soon as he’s in office, which sets up Republicans to accuse Biden of wanting to hike everyone’s taxes. The problem with that “trap” in the context of the payroll tax, though, is that it also sets Biden up to claim that Trump wants to slash entitlements, an attack he’s already pursuing. If Trump wanted to set a political trap of dubious legality involving taxes, he would have been better off deferring the collection of a certain amount of income tax instead.

Pelosi won't commit to suing Trump over his executive orders of dubious legality: "Right now, we want to address the needs of the American people. My constitutional advisers tell me they're absurdly unconstitutional." pic.twitter.com/10Y3CAKIM2

— Aaron Rupar (@atrupar) August 9, 2020