Transportation Secretary Sean Duffy has been one of the most vocal defenders of President Donald Trump’s sweeping use of executive power, withholding billions of dollars in federal funding to states and dismissing protests over the White House’s cross-border actions as the grievances of “disenfranchised Democrats.”
But court documents reviewed by ProPublica show that a decade ago, as a congressman, Mr. Duffy took a very different position on presidential power and articulated a full-throated defense of Congress’s role as a check on the president, much like the arguments made by speakers at recent anti-Trump “No Kings” rallies across the country.
In a thoroughly researched and argumentative legal brief in 2015, Duffy, then a Republican from Wisconsin, detailed the history of America’s founding in reaction to the absolute power of the British monarchy, citing Magna Carta and the Founding Fathers in arguing for separation of powers.
Citing a 1998 court ruling, Duffy argued that “just as Congress cannot give the president its own exclusive power to enact or repeal federal laws, it must not give the president its own exclusive power over the purse.”
The brief goes on to cite James Madison’s account of the Constitutional Convention, where there was “unanimous agreement that Congress, not the President, should control the funds.”
At the time, Duffy filed an amicus brief in support of a lawsuit challenging the constitutionality of the Consumer Financial Protection Bureau’s funding practices. Mr. Duffy, who chaired the House Financial Services Oversight and Investigations Subcommittee, argued that the agency’s unique funding system – the money comes directly from the Federal Reserve rather than being diverted by Congress – unfairly circumvented the authority of lawmakers.
The 39-page brief was filed in Duffy’s name along with a nonprofit group affiliated with Republican legal activist Leonard Leo and filed by a prominent conservative lawyer. Now, this stands in stark contrast to Duffy’s own actions as Secretary of Transportation during the first year of President Trump’s second term in the White House. Indeed, his attempts to limit transportation funding allocated by Congress in all 50 states this year have been condemned by Congressional watchdogs and a federal judge, leading to scathing public rebukes from other branches of government that mirror his own positions in 2015.
Peter Levine, a civics expert at Tufts University, said that while Mr. Duffy’s views on presidential power may have evolved over time, his clearly flippant stance on something as fundamental as the meaning of the Constitution raises the possibility that Mr. Duffy is “simply playing a game of power.”
“The Constitution is a promise to continue to apply the same rules and norms to everyone over time,” he added. “I don’t think the Constitution really works if political actors completely ignore it and just pursue their own interests.”
In response to questions, a Department of Transport spokesperson asked for a copy of Ms Duffy’s brief. However, the spokesperson stopped responding after ProPublica provided the information. A message sent to a number listed for Duffy was not returned.
Expansion of executive power is a characteristic of Trump’s second administration. According to the American Presidency Project at the University of California, Santa Barbara, the president issued a whopping 214 executive orders between January 20 and November 20. In both “numbers and ambition,” that mandate and its resulting actions, one Harvard Law School professor recently noted, “only Franklin D. Roosevelt exceeded these dimensions in the last century.”
Mr. Duffy cited some of those directives as they withhold transportation funds approved by Congress. And administration officials have defended those actions, arguing that post-Watergate laws that asserted Congress’s authority over spending unfairly limit the president’s power.
But Congressional watchdogs and courts have challenged this expansive interpretation of federal authority.
In Duffy’s case, the first trial took place in May, when the Government Accountability Office, a bipartisan body of Congress, concluded that the DOT violated the law in February when it suspended payments from a $5 billion fund for electric vehicle charging stations authorized by Congress under former President Joe Biden’s bipartisan infrastructure law.
“The Constitution specifically gives Congress the power of the purse,” the Congressional Watchdog wrote, arguing that payments should be resumed. “The Constitution does not give the president unilateral authority to withhold funds from obligations.”
A White House spokesperson called GAO’s opinion “wrong” when it was issued and insisted the DOT was “appropriately using” its authority.
In June, a federal judge in Washington ordered the transportation agency to lift the moratorium after some states sued Duffy and the Department of Transportation, saying that when the executive branch “tramples the will of the legislature,” it is up to the courts to “correct the situation and restore the balance of power.”
The government is moving to dismiss the lawsuit, reviewing its application process for funding for charging stations and writing that the states’ constitutional concerns are unfounded because another part of the constitution “gives the president broad discretion to ‘see that the laws are faithfully executed.'” The lawsuit is still ongoing.
Separately, a federal judge last month sided with states that challenged Mr. Duffy’s attempt to condition billions of dollars in additional federal funding for highway maintenance and other core transportation functions in exchange for helping the administration detain immigrants.
“If Congress had wished, it could have sought to elicit state cooperation in federal civil immigration enforcement through lawful means, and it could have sought to authorize federal agencies to assist,” Chief Judge John McConnell Jr. of the U.S. District Court for Rhode Island wrote in a Nov. 4 ruling blocking Duffy’s actions.
But instead, he said, administration officials “violated constitutional limits on the terms of federal funding.”
“The Constitution requires the court to halt this illegal practice,” he wrote.
The lawsuits are among hundreds this year challenging the constitutionality of various White House actions, including attempts by the White House to withhold spending of hundreds of billions of dollars in government spending previously approved by Congress.
A legal challenge supported by Duffy in 2015 ultimately failed, and the Supreme Court last year affirmed the constitutionality of the CFPB’s funding mechanism.
But the ruling doesn’t insulate the agency from the Trump administration, and officials are developing novel legal theories to accomplish what Duffy sought a decade ago. The administration currently argues that there is no benefit to transferring it to the CFPB because the Fed is currently operating at a deficit.
As a result, the Bureau is starving. It is expected to run out of operating funds by early next year, according to a recent court filing by government lawyers.
