Trump's Executive Branch Revolution

Our constitutional system will never be the same

It’s been a dizzying opening two weeks of the Trump administration. There are so many important developments on such a wide variety of fronts that it’s difficult to pay attention to them all or know where to begin in discussing them. Yesterday afternoon, in the midst of outrage over Trump practically disbanding USAID and giving Elon Musk and his friends access to government payment systems, the president lobbed another grenade into the public discussion by announcing that the US would “take over” Gaza. I’ve seen some people taking the occupation idea seriously, but I think the best way to read this is that Trump is serious about the idea that other countries should be encouraged to accept Palestinian refugees, which is the right approach from both a geopolitical and moral perspective.

For now, I want to focus on Trump’s assertions of executive power. All of this started with an Office of Management and Budget (OMB) memo that mandated a pause on all government grants, excluding programs involving money sent directly to individuals like Social Security. This move was soon temporarily blocked by a judge, and the memo was then rescinded, though the administration clarified that anything related to DEI was still banned. In addition to the area of spending, Trump has also asserted broad authority over the federal workforce. There is currently a plan to as of Friday put nearly all of the 10,000 USAID employees working abroad on leave, effectively shutting down the agency. Yet, as the OMB memo shows, the target here goes beyond any one department, with Elon Musk and his team having made incursions into some half dozen federal agencies that they are looking to remake. There are reports that Trump is getting ready an executive order on the Department of Education that will gut it on the model of his actions on USAID.

If you read media coverage, journalists will tell you that what Trump is doing is completely lawless. Certainly there have been some actions that are unlikely to hold up in court. Yet it’s important to understand recent steps taken in the context of long-standing legal debates over executive power. Trump’s actions haven’t come from nowhere, and they aren’t simply the improvisations of one power-hungry president. What the president is doing is nothing less than undertaking a fundamental remaking of the federal government, one that implements many long-standing ideas of conservative legal scholars whose views have been too extreme or politically untenable for previous Republican administrations, but that have gotten a hearing now because Trump in particular is keen on expanding his authority to the greatest extent possible.

Why do debates over the power of the executive have an ideological valence? In other words, why is conservatism associated with wanting to put a great deal of power in the hands of the executive, while liberals tend to call for a stronger Congress? There are three main reasons for this. First, as a general matter, Democrats want to spend more money, and Republicans less. As will be discussed below, the nature of the Constitution is simply such that there is a better case for the president being able to spend less money than appropriated than more. Everyone agrees that he can’t spend more than what has been allocated by Congress. Yet if the executive branch has wide discretion not to spend certain appropriations, that is a powerful way to cut the size of government and defund certain projects.

Moreover, liberals tend to like the results of federal employees using their own judgment, thus creating less impetus for Democratic presidents to try to exercise control over the federal bureaucracy and more reason for their party to resist Republican efforts to do so. Finally, when the modern debates over executive power originally started in the 1970s, Congress had for decades been in the hands of Democrats, while the GOP was more competitive if not dominant in presidential elections. The impetus for these debates was actions taken by Nixon that were widely seen as abuses of power, and each side was in effect arguing for its own party being able to do more of what it wanted.

One of the main debates in this area, and one that is particularly relevant in the context of recent events, has been over the concept of impoundment. Under our constitution, Congress makes laws, and the president is to “Take Care that the Laws be faithfully executed.” (Art. II, Sec. 3) There are an endless number of questions that the design of the Constitution raises about the balance of power between these two branches. The relevant one here involves what happens if the president simply doesn’t want to spend money that Congress has appropriated. It sounds extreme and perhaps contrary to the letter and spirit of the Constitution to answer that he has such a right, yet there is a long history of presidents doing just that, exercising a power that is called “impoundment.”

A good read on the historical context here can be found in a report from the Center for Renewing America called “The History of Impoundments Before the Impoundment Control Act of 1974.” The first author on the article is Mark Paoletta, who currently serves as General Counsel of the OMB in the administration, where he can now implement many of his ideas. As the article notes,

Indeed, it does not appear that it was once contended in the Federalist Era that the Executive had a duty to expend every cent of an appropriation. Such impoundments almost certainly occurred due to the fact that “appropriations bills ‘were quite general in their terms’” and left to the President the discretion in whether to spend the entire appropriation. Moreover, the Washington Administration consistently failed to expend the full amount of appropriations. This was openly reported to Congress by Hamilton, who often provided them with detailed accountings of unexpended appropriations. Congress responded by creating a surplus fund for unexpended appropriations. Under the terms of the surplus law of 1795, unexpended appropriations would revert to the Treasury after two years. Moreover, it was well known that the Executive underspent tens of thousands on hospital department appropriations. Congress’s response was not to demand the Executive spend the entire sum, but to reduce the appropriation in future years…

“Jefferson found it unnecessary on repeated occasions to use all of the money provided in a contingency fund” and “regularly returned the unexpended balance to the Treasury.” The most famous early impoundment precedent came in 1803, when Jefferson refused to spend a congressional appropriation of $50,000 for 15 gunboats for use on the Mississippi. The impoundment was on pure policy grounds: Jefferson did not want to provoke France during secret negotiations over access to New Orleans and the purchase of the Louisiana territory. In his annual message, Jefferson told Congress that the appropriated funds remained unexpended because a “favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary.” Upon completion of the Louisiana Purchase, Jefferson then expended the money to construct the gun boats to patrol the Mississippi, including its newly acquired American west bank.

Similar examples abound from the presidencies of Ulysses S. Grant, Woodrow Wilson, and Franklin Roosevelt, among others. Yet it was Nixon who took the power further than other presidents, in effect nullifying many programs he disagreed with. Eventually, as part of a series of post-Watergate reforms, Congress passed and President Ford signed the Impoundment Control Act (ICA) of 1974. The bill prohibits the president from impounding funds without congressional approval. If he wants to not spend certain money, he must get both the House and Senate to assent to his actions within 45 days.

Conservative scholars have spent decades questioning the validity of the ICA, with some arguing that Congress has no right to restrict presidential power that is rooted in his constitutional role. See here and here for different sides of the debate. The law came up during Trump’s first impeachment over his withholding of aid to Ukraine, with the ICA being presented as supporting evidence that the president had abused his authority.

That said, Trump during the campaign argued that the law was unconstitutional, and the Supreme Court has never ruled on the matter. How much will he be able to get away with? The courts will have a say in the matter, and as we all know they have moved to the right in recent years. Moreover, judges are often hesitant to embarrass themselves by giving orders that they can’t enforce, which leads them to find creative ways to get around questions that pose political difficulties for them. This goes back in the American tradition to Marbury v Madison (1803). So all this is to say that even if some of Trump’s actions are struck down, and many won’t be, that only sets the stage for struggles over questions about the balance of power between the executive and judicial branches.

The underlying truth here is that while we rarely rewrite the words in the Constitution, norms and practices change based on ideas of what is appropriate and the balance of political power. Basically, if the president, his appointees, and enough sympathizers across the government share certain views about impoundment, or most other topics, those ideas will change the American system. Trump’s vision is radical given the practices of recent decades, he has previously unheard of levels of control over his own party, which holds both houses of Congress, and the courts are more right wing than they have been at any other point in the post-New Deal era. Trump has already seized powers that will be taken advantage of by future presidents, particularly Republicans, who are more ideologically committed to a strong executive branch.

It’s useful here to think about the ongoing rebalancing of authority between the executive and legislative branches by looking back to what happened to the judiciary under the Warren (1953-1969) and Burger (1969-1986) courts, which remade wide swaths of American society. In Brown v Board of Education (1954), the Court not only declared racial segregation in public schools unconstitutional but effectively mandated social change, compelling states to desegregate with “all deliberate speed.” The decisions on race of this era were truly wild if you think that the words used in the Constitution and federal statutes have any fixed meanings at all. In Swann v Charlotte-Mecklenburg Board of Education (1971), the justices ruled that it violated the Fourteenth Amendment for a district to let families pick which schools their kids attended, because the end result was de facto segregation. So courts, rather than districts or families, would decide where children could go to school, with a goal of racial balance. This led to an era of hours-long daily bus rides for kids in order to give them classmates of the correct background, regardless of what anyone in the local community thought of this result. This was also the era of Griggs v Duke Power Co (1971), which gave us disparate impact, in violation of the plain text and original intent of the Civil Rights Act.

Further, decisions like Gideon v Wainwright (1963) and Miranda v Arizona (1966), where the phrase “Miranda rights” comes from, nationalized protections for criminal defendants, imposing federal standards on state judicial systems. These rulings reflected an unprecedented readiness to override state laws and practices, positioning the Court as the ultimate arbiter of individual rights, even in areas where the Constitution had previously been interpreted more narrowly. On social issues, Engel v Vitale (1962) banned prayer in public schools, and Griswold v Connecticut (1965) established a constitutional right to contraception, followed by the even more controversial outcome in Roe v Wade (1973) eight years later.

These kinds of decisions were truly radical, both in the scope of power seized by judges and in how creative the Supreme Court was in interpreting the law to reach liberal conclusions. Before this era, judicial appointments weren’t seen as that high stakes, but after the Warren Court began its revolution, the ideological composition of the judiciary became a major issue motivating voters on both sides of the political spectrum.

Thanks to appointments by Bush and Trump, conservatives now have a solid 6-3 majority on the Supreme Court, and some of the legacies of the judiciary of the 1960s and 1970s have been undone, including notably on the issues of affirmative action and abortion. Last year, Trump v United States (2024) granted broad presidential immunity for acts committed while in office, thereby expanding executive power in contrast to the Warren and Burger courts, which mostly limited it.

Yet there is no possibility of the judiciary going back to its previously less partisan role. Conservatives don’t want to simply undo liberal innovations, but enforce their own preferences. Citizens United v FEC (2010) overturned a federal law in declaring that corporations, unions, and other associations have a First Amendment right to spend unlimited amounts of money on independent political expenditures. District of Columbia v Heller (2008) was the first time that the Supreme Court established the right of an individual to possess a firearm for self-defense. Now, instead of apolitical courts, or courts that are widely seen as liberal, we have courts that are more politicized than ever with both sides playing the same game.

The Trump administration can therefore be seen as the executive branch equivalent of the Warren Court, fundamentally remaking the federal government in ways that give future presidents new powers that will from now on be used by both sides. No matter what one thinks of either revolution, in both of them political realities have mattered more than the strengths of any legal arguments. Trump did not start out as a conservative legal scholar. But he found one particular branch of conservative legal thought that dovetailed quite nicely with his own ambitions. As a result, Trump has become a revolutionary figure and is now sure to go down as our most consequential president since at least Lyndon Johnson.