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No matter how dedicated the members of the Trump administration are to their stated goals, the Washington, DC “swamp” is an armpit-deep slog that threatens to suck them under. The presence of an out-of-control federal government, a Congress uncommitted to draining the swamp, and a court system infested with progressive judges will make it very difficult to achieve President Donald Trump’s agenda.
In order for America to survive, a majority of the justices on the U.S. Supreme Court (SCOTUS) and the lion’s share of the judges in the appellate court system must be committed to the principle of originalism, the belief laws, including the Constitution, should be interpreted in the same way the writers of those laws intended.
The present Congress does not have the will required to drain the Washington, DC swamp, and future Congresses will do no better. One way to fix this is for Congress to be boxed in by a Supreme Court devoted to interpreting the Constitution in a way that is consistent with the views and intentions of those who wrote it. While Trump’s nominees to the Supreme Court will likely push the Court further toward originalism—assuming he nominates judges like Neil Gorsuch in the future—this might take years to occur. Nevertheless, at some point, the brunt of 6–3 or 7–2 decisions could give the Supreme Court the cover it needs to implement a reversal of America’s destiny.
The Trump economic, tax, and security policies, if implemented, will certainly help, but the swamp will continue—mostly unabated. A viable path to truly drain the swamp is through the president and Supreme Court. A first step in reestablishing control of government is a complete overhaul of the tax system. Unfortunately, that is just not going to happen. The current 70,000+ pages of tax code and interpretation will almost certainly continue to grow, even if progressive taxes can be somewhat reduced.
Congress holds the cards in any tax reform effort. For the President to succeed in tax reform he has to hold the cards. That means abolishing the present tax code and starting reform at ground zero. In his book Takings, Richard Epstein has made the argument that progressive taxation is unconstitutional. To tax any group of citizens at a higher rate than other groups is an uncompensated taking which violates the Fifth Amendment. Some may argue that the compensation is through “benefits” received in public goods, but there is no reasonable benefit assessment that can match and validate such offsetting compensation.
How would such a challenge to progressive taxation find its way to the SCOTUS? Again, my suggestion is that the president could withhold funding, disrupt activities of the Internal Revenue Service (IRS) through appointments to key IRS positions and ultimately order the IRS to stop collecting taxes. The rationale would be that progressive taxation is unconstitutional and impedes the growth of the economy in an emergency situation. Such major disruption would cause a constitutional crisis that would have to be quickly resolved by a reconstituted SCOTUS.
If a reconstituted SCOTUS disallowed progressive taxation, Congress would have to institute a flat tax. A flat tax at a reasonable rate would automatically limit the federal government overreach. Furthermore, a pure flat tax (no deductions) coupled with substantial regulatory rollback would lead to sustained economic growth likely approaching 5% – a growth rate that exceeds our nation’s best, historical, long term growth rates. The Wall Street Journal, Forbes, the Tax Foundation and Alvin Rabushka, an original designer of the flat tax, have determined that a pure flat tax is the best tax plan for America. The tax code could probably be written in a few hundred pages. Personal income tax filings would be by postcard. For the IRS to administer such a code would require, perhaps, 10,000 of the present 89,000 employees.
Several other key Supreme Court decisions necessary to bring the country back from the brink would suggest themselves to a constitutionally driven President and SCOTUS. Start by closing down the Education Department. A constitutional ruling would find that the federal government has no authority in education, since it falls under state and local authority. This would be the initial wedge for determining exactly what authority the federal government has. Justice Alito has recently suggested such an agenda in a speech before the Federalist Society.
Fill in the blanks for other obvious SCOTUS federal rollbacks—dozens upon dozens of unneeded agencies, committees and boards. Some aspects of the associated programs might survive on a much reduced sub-cabinet level. The ultimate goal is to restore the Republic to its rightful design, with federal and state authority being reconstituted within constitutional limits. The benefits would be enormous versus relatively small costs. Finally, the swamp would be drained and our dream fulfilled.