Separation of Powers Ain’t What it is Cracked Up to Be

Partisanship is more important than institutional autonomy.

As we watch the Trump administration engage in any number of actions that violate the clear will of Congress, such as firing Inspectors General without complying with the law and illegally impounding already appropriated funds I am seeing lots of calls for Congress to “do something.”

Setting aside the question of precisely what it is that folks may want Congress to do, I would submit that a lot of otherwise educated and well-informed people are falling for a mythological view of American government. We all remember being told that we have a system of separated powers and checks and balances and that the differing institutions would jealously guard their own powers and prerogatives. So, if a president, for example, blatantly disregarded laws passed by Congress that Congress would react very negatively to such an encroachment.

But as I have noted many times before, the entire theoretical underpinning of the separation of powers/check and balances system was designed without political parties in mind. I wrote a lengthy post about this back in 2019, Partisanship, Separation of Powers, and the Limits of Oversight.

The alleged genius of separated powers was that the legislators’ interests would be wrapped up in the interests of the legislature, while the interests of the president would be wrapped up in the interests of the executive branch. And each would jealously, and zealously, defend those interests.

Hence, to protect the branches from each other, and to make sure each tried to stop the other from obtaining too much power “Ambition must be made to counteract ambition” and this would happen because “The interest of the man must be connected with the constitutional rights of the place.”

However, the introduction of political parties into this system (which, I would argue, was inevitable and is a direct, almost natural, function of a system of representative government), built a bridge between the branches that was not anticipated. More importantly, it changed the dynamic of interests and incentives.

I would argue we are watching this unfold in real-time. President Trump has engaged in a number of actions that directly challenge congressional authority. His co-partisans in the Congress, rather than reacting with jealous outrage that legislative power is being usurped by the executive are meeting it all with a shrug (if that).

It is possible that some of these actions by the executive branch will eventually be curtailed by the judiciary in a manner that fits the checks and balances model. However, I would point out that even the courts have become increasingly partisan, especially SCOTUS. As I noted in a recent post, it just takes a few Aileen Cannon’s to underscore this fact.

Of course, the way in which the Trump administration is assaulting the norms of governance underscores how hard it is for even legal protections to function. It may well be illegal to fire IGs in the manner he has, but so what? What is the immediate consequence? It may well be illegal to halt federal spending, but so what? What is the immediate consequence?

Maybe courts intervene in an expeditious way in specific instances, but will it be enough to stop the overall onslaught?

Jonathan Bernstein points out the following:

The OMB memo says that “career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.” That’s simply not true. Federal spending is passed by Congress and signed by the president. It is law. If the president — very much including a new president — doesn’t like it, there’s another budget cycle next year, and the president can always ask (or even demand, if it does any good) that Congress to pass new laws to change things more quickly. Until then? Tough luck, Mr. President. 

And to be clear: The “will of the American people” as expressed in both presidential and congressional elections is limited to which candidate they prefer of those on the ballot. Anything more is conjecture, guess, and assertion. All of which elected officials may do if they wish; indeed, healthy representation requires politicians to act with the promises they made during the election in mind. Using public support for persuasion is fine, and it may or may not work. But none of that is license for presidents to do whatever they want, law and Constitution notwithstanding.

That is a chilling line that bears repeating: “career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.”

Again, that is a dictatorial statement.

Connecting, as I did in the linked post above from 2019, to Federalist 51, Bernstein continues:

I was on Matt Glassman’s pod last week as he was trying to sort through ways that Trump’s presidential power grab differ from what ordinary presidents do. I didn’t really say it correctly, but what I should have responded is that a certain amount of Constitutional aggressiveness is normal and even healthy, even if sometimes it means that presidents step over the line and wind up successfully asserting powers the Framers did not envision. Ambition vs. ambition and all that. Energy in the executive is good. 

This is something else entirely; this is an attempt to upend the entire system. If it’s not defeated, the Constitutional order is over.

The Constitution of the United States of America does not empower an elected dictator. It is a government, as the political scientist Richard Neustadt said a long time ago, of separated institutions sharing powers. Not one based on the whims of one person.

This is the core problem with all of this: the president alone does not get to decide these things.

But, you know, he was just joking about governing like a dictator.

Hilarious!

FILED UNDER: Democratic Theory, Federalist Papers, Political Theory, US Politics, , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a retired Professor of Political Science and former College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Not the IT Dept. says:

    We’ve been coasting on the work and writings of the Founding Fathers for decades now, every since 1830 at least. We haul out Jefferson’s Declaration of Independence when we want to sound strong and leader-of-the-free-world-ish. But we have rarely lived up to our claims and a closer look at our history reveals many times when we dropped the ball morally and socially.

    I make an exception for Lincoln because he walked the talk and was the best writer since Jefferson and Madison. But after him, it was a downhill slide again.

    7
  2. Charley in Cleveland says:

    Dick Cheney is the first person I recall asserting the unitary executive theory by which the president can do whatever he wants, unchecked by Congress or the courts. W took money that had been appropriated for Afghanistan and shifted it to fund the Iraq invasion…without consequence. Congress has long ceded too much power to the President – such as the power to start and run a war – and now that we have a president who is bounded by neither law nor logic, a lapdog Congress, and Supreme Court that says a president can commit criminal acts, the checks and balances notion seems quite quaint. Mr. Franklin’s “if you can keep it” rings louder every day.

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  3. just nutha says:

    @Charley in Cleveland: I think “When the President does it, it isn’t illegal” is the first. YMMV (and I agreed with Nixon at the time).

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  4. Kathy says:

    I wouldn’t put much hope in what the courts might do. Even if the Leo & Crow court orders the rapist to comply, there’s the Andy Jackson gambit: “Justice Marshall has made his decision. Now let him enforce it!”

    2
  5. Connor says:

    Reading essays and comment threads here is fascinating. Executive overreach and debates about it have a long history, and dozens and dozens of documents exist can be easily be accessed to read abut it.

    Some presidential acts are clear, some rather debatable. See: Obama and the minimum wage. Some are considered minor, other egregious. FDR anyone?

    What’s fascinating is the current tendency here and other left leaning publications to immediately cite anything one doesn’t like as evidence of Trump the dictator. I don’t recall very much debate in the public sphere about that notorious dictator Barack Obama, and Libya.

    To me it sounds more like idle grousing based upon politics. One can hardly argue that Congress has not abdicated its responsibilities and ceded its power to the Executive over the course of many years. I think we all know why. But the overreach as evidence of Trump as dictator argument falls flat in the greater context and historical record.

    As a public service announcement I would note that stomping of feet can result in bruising of the foot; and blue in the face is not a good look. If the voting public does what it tends to do: vote for “their guy, the incumbent,” don’t expect much to change.

    1
  6. Kevin says:

    @Connor: Bullshit and sophistry. Anyone not willing to acknowledge that what is currently happening is very different from what has come before, at least in my lifetime, is trolling or delusional. Impoundment is illegal, period. It’s settled law. Congress has the power of the purse. Trump has not pointed to any legal authority he has to do most of what he’s trying to do. Things are going to break. People are going to die.

    I hope no one you care for relies on Meals on Wheels, is in an oncology trial, or was planning on having children any time soon.

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  7. steve says:

    Actually, there was a fair amount of concern about Obama using executive orders. However, as was posted on this site recently, what Trump is doing in the number of executive orders and what he is actually ordering is magnitudes, as in the mathematical definition, different than what Obama or anyone else did.

    Dr Taylor- Yup, the founders got it wrong. Party affiliation, and I would also add allegiance to an authoritarian, trumps and presumed jealousy over protecting their own powers. What they actually worry about is getting re-elected and the key to that is supporting the party which currently means supporting whatever Trump wants. The law, the constitution, norms, common decency are irrelevant. It’s all about pleasing Trump which in turn is about appealing to the lowest common denominator of the GOP.

    Steve

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  8. Michael Reynolds says:

    No system of government, however well-constructed, can survive the collapse of civic virtue.

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  9. just nutha says:

    @Connor:

    I don’t recall very much debate in the public sphere about that notorious dictator Barack Obama, and Libya.

    ,Please explain to me the connection between “left- leaning discourse” and “debate in the public sphere.” For the record, this type of attack, where one is attempting to discredit one distinct cohort by conflating it with a multi-faceted, larger, amorphous, and mind numbingly dissimilar one is what I was thinking of in a different post. It’s the difference between “argumentation,” which IS NOT happening and “quarreling,” which IS.

    5
  10. Kathy says:

    About the only remedy for partisanship I can think of is the Roman system of dual occupants of the executive office, with veto power over each other.

    Possible remedies I’ve none.

    2
  11. Michael Reynolds says:

    @Connor:
    That’s all nothing but whataboutism, the basic morality of MAGA: Some guy some other time did something similar, so it must be OK!

    Or, ‘Why are you mad at me for killing guys and frying up their cocks, whatabout Jeffery Dahmer?’

    I take a certain pleasure in watching the CHINOS (Christians In Name Only) completely abandon the very morality they’re intent on shoving down other people’s throats.

    Try this, Connor: try to remember what you believed in before ‘Grab ’em by the pussy,’ got you all wet. I guarantee that before that you would have been outraged and horrified by what Trump is doing. That is how cults work, they strip away independent judgment and morality.

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  12. drj says:

    @Michael Reynolds:

    You give him too much credit.

    Proper MAGA whataboutisms go like this: “Some guy some other time did something dissimilar (which I was mad about), so it must be OK for my guy to do what he is doing now.”

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  13. Jay L Gischer says:

    And of course, our outrage makes Trump seem powerful, which is what he seeks. Especially since we can’t stop him.

    I think what we need to do is highlight how dumb and weak his stuff is. That isn’t that hard, actually.

    Why do we need Greenland? All I can see is more expense for not much more value than we get from our leases.

    What would be the point of changing the name of a body of water from what it has been called for the last several hundred years? Why does this anything to make life better for anyone? It’s just wasted effort.

    What does he even mean by “federal forces have entered California and turned the water on”? Nothing has happened that matches that description in even remotely?

    Meanwhile, I would love to see those IGs, or some of them, contest their firing in court as illegal.

    5
  14. Andy says:

    There’s very little that Trump is doing that isn’t explicitly in the authority of the Executive Branch, or is an overreach that doesn’t have any precedent.

    Trump has the authority to fire IG’s. The law in question is a 30-day notice requirement, not a prohibition on firing IG’s. Unfortunately, there is a very long history of Presidents ignoring notification provisions when it is convenient to do so, arguing that it infringes on their Article II authority. Trump firing a large number of IG’s is bad, but it’s in his power to do so. Not providing 30-day notice is facially illegal, but ultimately not very relevant because it’s only a notification requirement, Congress made the requirement with very little in terms of enforcement, and so Presidents have long chosen to ignore similar requirements when convenient.

    On the “illegally impounding funds,” Trump and his team have done their homework. This is a temporary pause in spending, which is probably not an illegal impoundment of funds under the Impoundment Control Act. I don’t think any President has done it at this scale, but most every President has temporarily paused spending in various areas to prioritize and align it with their administration’s policies and priorities. The most recent example we all know about was Biden’s “pausing” of some Congressionally-appropriate weapons shipments to Israel. Trump is doing the same thing here, only on a massive scale.

    This is what Congress enables when it appropriates funds for broad categories of spending and then leaves it up to the Executive Branch to work out the details and specific priorities and requirements for that spending. This gives the Executive a lot of leeway in determining HOW the money is actually spent, as long as it fits withing the general rubric of what Congress intends. That is exactly what Trump is doing here. He’s pausing spending and then plans to have agencies scrub all the programs. This isn’t new, all Presidents do this, just not on this scale.

    It’s also exactly what’s happening with DEI. Biden’s implementation and mandate of DEI programs across the federal government was not authorized by a specific law; it was authorized by the Executive Branch’s entirely legal discretionary authority over organizing Executive agencies. And that’s why Trump can nuke DEI in the federal government—future Presidents can exercise their discretionary authority differently.

    What frustrates me – and here’s my “I told you so” moment – is that this is what eventually happens when you give the Executive Branch a lot of de jure and de facto discretion. When I’ve brought this up before, people here have told me for years now that it’s entirely unreasonable to expect Congress to exercise more direct control over how money is spent—well, perhaps people will finally see the tradeoffs that come with that viewpoint.

    If you don’t want a President to be able to mass fire IG’s, then maybe don’t give the President the authority to mass fire IG’s. If you don’t want a President to use their discretionary authority over the administration of spending and the policies of the administrative state, then maybe consider not continually giving the office of the President every more authority in those areas.

    And especially for the partisans on both sides out there, the system is not designed to give the President you like more authority to do things that you like compared to Presidents you don’t like. If you’re going to defend the excesses and illegal acts of the President you like and ratchet the norms, de jure and de facto authority toward greater Executive power because you want a tactical win for your team, you might want to start considering the long-term effects and, at a minimum, realize that the inevitable future President you don’t like can do the same damn thing.

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  15. Connor says:

    @Kevin:

    I see, so you disagree with Trump. Got it. Well, he won. So go win an election.

    Please spare me any notions of objective reality so far, it’s all whose ox is gored.

  16. Mr. Prosser says:

    @Kevin:

    I hope no one you care for relies on Meals on Wheels, is in an oncology trial, or was planning on having children any time soon.

    This is where it will show the impact: caregiver respite grants, museum programs, after school tutoring, senior services, community centers and food banks. When local quality of life programs like these fold up or contract there will be complaints. Citizens don’t care about the big picture, they care about what happens to them.

    5
  17. Jen says:

    Anyone who doesn’t understand the difference between what is going on now with the total abandonment of any semblance of understanding that a President is not allowed to override Congress’s prior acts, and former presidents (Republican and Democratic) acting when Congress abdicated its responsibilities isn’t worth the time.

    Connor, anyone with a brain understands that what Trump is doing is different than what has come before. Now, there are those who are okay with that (which is gross and appalling), and those who aren’t okay with it (which is to be expected). But Trump has illegally fired IGs, illegally stopped grant money that was appropriated by Congress, illegally (and unconstitutionally) ordered the end to birthright citizenship, and on and on…this is not normal. He’s ignoring the role of one of the three branches of government, and I certainly hope that the Judicial Branch is taking note, because he’ll ignore them next.

    7
  18. Connor says:

    @Jay L Gischer:

    I agree with the thrust of your point. But you do realize he uses trolling as a communications strategy. Right? But given that 90% of media plots to distort his message what do you expect? And it works.

    Given the purity of Washington politicians and the surrounding environment (LOL) notions of purity make one laugh. It’s a knife fight in a closet.

  19. Jen says:

    @Jay L Gischer:

    Meanwhile, I would love to see those IGs, or some of them, contest their firing in court as illegal.

    I believe they are considering a lawsuit. This, from the NYT:

    […] Another person familiar with the matter, who spoke on the condition of anonymity to discuss the deliberations, said several of the fired watchdog officials were discussing whether to file a lawsuit over the fact that Mr. Trump had defied the notice law.

    It was not yet clear if any would do so. […]

    1
  20. Jc says:

    “Trolling as a communications strategy…” What? Isn’t that what you are doing right now? Yikes…

    4
  21. Jay L Gischer says:

    @Connor: I don’t know that I would describe it as “trolling as a communication strategy” even though it’s close enough to not push back. It’s hyperbole and lies meant to punch up some message, most of which is “I’m powerful” and “Those guys are bad”.

    I do not like being lied to. Not one bit. I don’t like it when my co-partisans do this. I especially don’t like it when the lies bear false witness against other human beings. Inevitably, I will be in the crosshairs. I’ve been in those crosshairs before. Nope. Do not endorse.

    If you think it’s “fun”, or something, it is because you have never been targeted. I do not wish for your day to come, and I hope you develop a bit more empathy for people in that situation in some other way. Because it sucks.

    8
  22. Kevin says:

    @Connor: Please, tell me where Trump said that his plan was to kill Meals on Wheels, cancer patients, poor/unborn children, and thousands of people in Africa. Because that’s what this “pause” is doing. Organizations getting money from the federal government foolishly assumed that the grant meant something. Without that money, people are going to be laid off, and years or decades of knowledge is going to be lost.

    Now, some of us expected something like this, but that wasn’t what he ran on; in fact, he explicitly disavowed some of what he’s doing now. Or so I read; he spews so much nonsense when he speaks, who knows what he meant? I don’t know if he knows; I’m not convinced he has a firm grasp of reality.

    5
  23. Gustopher says:

    His co-partisans in the Congress, rather than reacting with jealous outrage that legislative power is being usurped by the executive are meeting it all with a shrug (if that).

    I don’t see a lot of noise from the Democrats either. Instead, I’m seeing them trying to be “bipartisan” and voting to confirm nominees as if all of this is normal, etc. They don’t have the numbers to stop things, but they have the numbers to make a big stink.

    2
  24. Kurtz says:

    @Connor:

    Specifics, please. You cite names and places (FDR! Obama! ‘Who do you think? The Lybians!’).

    I can paraphrase your post in one sentence:

    History shows that Trump is not unique in his overreach.

    Merely saying the names of former Presidents, a foreign country, and an EO about minimum wage for federal contractors says nothing more than the sentence I wrote. You never actually compared or contrasted, you just provided a list with illusory specificity.

    Most importantly, it defends none of the actions criticized by our hosts.

    To me it sounds more like idle grousing based upon politics.

    More or less indicative of “idle grousing based on politics” than your list that only included Democrats when the most contextual historical example would be Nixon? (side note: I take the meaning of the quote to be “partisan” but I cannot be sure; your posts display a pattern.)

    After all, one of the key legal issues here is impoundment of appropriated funds. Why is the Executive Branch required to spend all appropriated funds? Well, because Nixon abused the power to the point that Congress made a law to stop that abuse. (Please, please, please point out that legislation was passed by a Congress with a Democratic majority. It would show everyone how little you know about 20th century poltical history as well as paint yourself into a corner wrt Trump’s actions.)

    Prior to that, impoundment was considered within the purview of the President.

    Of course, if you were interested in actually forming an argument, you could easily make an originalist argument here that it was Congress that overstepped its powers with the Congressional Budget and Impoundment Control Act of 1974.

    But arguing against an 7-1 decision by the Burger Court in which the 1 was a concurrence rather than a dissent takes way too much effort. Effort that you appear to demand of others, but are unwilling to undertake yourself.

    And by the way, how does it feel to know that a person who disagrees with you and called your posts vapid window dressing seems to have a better grasp of your own position than you do? That would feel shitty, but something tells me you lack the self-awareness to even consider it might be the case.

    Oh, right, you can just say “history” and substitute a cumbersome phrase for “bias” or “partisanship” and call it a day, because you think that wins.

    I’m beginning to think that you are lying (to yourself or us) about you finding this site and its resident commentariat fascinating. If that were true, you would make an effort to understand and engage by making real arguments.

    5
  25. Jen says:

    @Andy:

    Trump has the authority to fire IG’s. The law in question is a 30-day notice requirement, not a prohibition on firing IG’s. Unfortunately, there is a very long history of Presidents ignoring notification provisions when it is convenient to do so, arguing that it infringes on their Article II authority. Trump firing a large number of IG’s is bad, but it’s in his power to do so. Not providing 30-day notice is facially illegal, but ultimately not very relevant because it’s only a notification requirement, Congress made the requirement with very little in terms of enforcement, and so Presidents have long chosen to ignore similar requirements when convenient.

    But it isn’t just a 30-day requirement. It’s a 30-day requirement AND the President must detail the reasons for the firings–per Congressional act. Congress literally and specifically provided the exact conditions under which such firings are permissible, and Trump blew right by them. You are not being honest with yourself if you really believe that is comparable to anything others have done. Same with the full stop on all grant money. Same with stopping SNAP payments, or pulling the plug on foreign aid.

    Trump is intentionally trying to cause chaos. This isn’t a measured rollback, or a policy discussion. It’s round-ending Congress, and Congressional Republicans–the ones in charge!–are too scared of him to say boo.

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  26. Charley in Cleveland says:

    Love this Connorism: But you do realize he uses trolling as a communications strategy. Right? But given that 90% of media plots to distort his message what do you expect? I guess when the gullible and lazy “elite media” post Trump’s Truth Social screeds verbatim that is evidence of a plot to distort his message. *sigh* Pass the bourbon.

    5
  27. Andy says:

    @Jen:

    The differences with this 30-day provision isn’t as big as you’re suggesting, and regardless, those previous cases are no less facially illegal than this one. Selective enforcement of the law and/or excesses in Executive overreach are not a valid excuse – they are part of the core problem. If Congress puts weak enforcement provisions into these requirements and then no one does anything to enforce them, one should not be surprised when future Presidents also ignore them. It doesn’t suddenly become critical when the President’s action is something you don’t like.

    Now, to be clear, I would very much like to see some attempt to enforce the provisions for the IG firings. I’m for following the law. I’m not at all arguing that Trump should just get away with it. It ought to be opposed. I’m just pointing out that the reality of the history of similar actions shows that enforcement is difficult, and that historical record of not enforcing previous cases very likely informed the Trump administration that they would be able to get away with it on the IG firings – and they probably will.

    Of course, maybe more shoes will drop and there is more to this, we’ll have to see.

    Trump is intentionally trying to cause chaos. This isn’t a measured rollback, or a policy discussion. It’s round-ending Congress, and Congressional Republicans–the ones in charge!–are too scared of him to say boo.

    That doesn’t change the fact that Trump has the authority to temporarily pause spending to reevaluate programs. According to the OMB memo I’ve seen, the pause here will be short – only about two weeks. I’m skeptical a full review can be done in that time, but that’s the deadline they’ve set for themselves. People are acting as if Trump is cutting off all funding for all time. That is not the case.

    The real test will happen when we discover what changes the administration makes when spending it unpaused. If the changes draw outside the very broad lines set by Congress when appropriating the money, then that will be actionable. That remains to be seen, but I would not be surprised if the administration gets over its skis and gives cause for legal action.

    And that is just for this FY. Congress has the opportunity to put restrictions in future appropriations although that is very unlikely to happen until Democrats control the House again.

  28. steve says:

    Andy- “When I’ve brought this up before, people here have told me for years now that it’s entirely unreasonable to expect Congress to exercise more direct control over how money is spent”

    What I remember or at least what I claim is that Congress has abdicated its responsibilities. I dont believe anyone here thinks its unreasonable to hope the Congress would carry out its functions again, its just unreasonable based on their actions of the past 25-30 years to think that they will suddenly change and start acting as was intended when the country was founded. Congress focuses on getting re-elected and the incentives to do so are aligned with supporting the party (or in the case of the current GOP supporting Trump), not maintaining their Congressional prerogatives as seen by the founders.

    Steve

    3
  29. Roger says:

    This isn’t my blog so I probably shouldn’t make blog-length comments here, but this conversation takes me back to an exchange I had with a Trump-supporting nephew shortly before the 2016 election. For what it’s worth, I repeat it here. I worried then that Obama’s willingness to govern by executive order would embolden Trump to do even more of the same. In retrospect, I may have been overly optimistic to think that Trump needed any kind of precedent to do whatever he wanted to do. It’s depressing to consider how the examples I was thinking of in 2016 of how disastrous a Trump presidency would be pale in comparison to what we’re actually seeing now.

    I get some of what you’re saying. Two of my biggest disappointments with Obama have been his continuation (if not expansion) of the Bush/Cheney “war on terror” by extraconstitutional means and his penchant for governing by executive order and administrative regulation. My disappointment has been compounded by watching Democrats accept or even praise actions by Obama that would have had them marching in the streets if Bush had done the same thing.

    I suspect you and I agree that it has been a bad thing for the country for Obama to govern this way, but may disagree in our assessment of how we came to this pass.

    With respect to the waging of war, I think it has less to do with any liberal or conservative agenda and more to do with the fact that, for pretty much my entire adult life, for whatever reason (my personal opinion is political cowardice) Congress, no matter which party controls it, has ceded to the president, no matter which party he came from, Congress’s exclusive power to declare war. Power accretes, and by the continual, virtually unchallenged use of the power Congress ceded, the presidency has gained the power to wage war with little in the way of congressional input. That’s a bad thing, but I don’t think it’s a liberal v. conservative thing. Bush/Cheney, with their embrace of the unitary executive theory as a justification for anything the President wanted to do that was in any way related to national security, were just as willing as Obama to abuse presidential war powers. Hillary was not my first (or second, or third…) choice for president, and one of the reasons is that I think she’s far too willing to use force. That’s a worry for me. But that worry pales in comparison to my fear for a world in which Donald Trump is commander in chief. I probably will disagree with Hillary’s decision on the use of force at some point in her administration, but I don’t doubt that her decision will be a rational one, even though reasonable minds may differ as to whether she made the best choice. I have no such faith in Trump, and that fact alone disqualifies him for the presidency in my view.

    I think presidents–all presidents, from both parties–abuse their power to wage war because Congress lets them. Congress chooses not to govern, so the president steps in. I think that Obama’s overuse of executive orders and administrative regulations came from the opposite side of the same coin.

    In 2009, the Republicans in Congress decided that they would cooperate with Obama on nothing, in an effort to block any achievement he might claim and deny him a second term. They looked at a man who received the largest number of votes ever received by a presidential candidate, who beat his opponent by 7% in the popular vote and a landslide in the electoral college, and chose to refuse to cooperate on anything. Some might have seen a mandate in those numbers, or at least acknowledged a divided country that needed a government that could work together. Republicans saw an opportunity to obstruct. Congress chose not to govern in order to stop Obama from governing, forgetting (or not caring) that our system offers the president other ways to implement his policy. Obama responded by using the powers he had as head of the executive branch to try to achieve his policy goals.

    Many Democrats praise Obama for this. I don’t, because, as I said before, power accretes, and power that flows to an institution tends to stay with that institution even after the current occupant leaves. The power Obama took to govern by executive fiat likely will stay with the office when he leaves, available to be used by, God forbid, President Trump. And I have no doubt that Trump will use every bit of power residing in the office of the presidency if we are foolish enough to let him obtain it.

    One place I’m sure we differ is that I’m actually a fan of regulations, properly adopted. A good friend just got back from China talking about what it was like to be able to see the air and have a smoker’s cough just from breathing. That used to be LA. I say God bless the EPA. I’ve spent the better part of 30 years either defending or suing corporations and here’s what I’ve found: they lie, cheat, and steal in ways that hurt the little guy. I was so naive when I started out that I was shocked to see how readily nice guys lied under oath. Good, church-going parents who would be horrified if their child fibbed will happily phony up research or evade safety regs because “it’s business.” Wells Fargo opens thousands of phony accounts while their executives get tens of millions of dollars in stock options off the inflated value the phony accounts helped bring. Give me a little regulation of them. Are there too many regs? Sure. Could we stand some pruning of the regs? No doubt. Are regs killing the ability of entrepreneurs to succeed? Show me the data, because I keep hearing that but I don’t see the proof. By the way, I’m a small businessman myself. I hate a lot of the Mickey Mouse rules we have to follow. I know, though, that almost all of them were put into place after someone less ethical than I am screwed a client.

    You’re worried that our country will change into something our founders never imagined, but that ship sailed a long time ago. Men without property vote, women vote, blacks vote–all unimagined by our Constitution in 1787. The world we live in was unimaginable to the founders. What did George Washington think about the government’s attempt to compel disclosure of a smart phone’s password? What did Tom Jefferson think about a pharmaceutical company that charges thousands of dollars per dose for life-saving medications? What did Ben Franklin think about estate taxes?

    Wait, we know that last one–“All Property, indeed, except the Savage’s temporary Cabin, his Bow, his Matchcoat, and other little Acquisitions, absolutely necessary for his Subsistence, seems to me to be the Creature of public Convention. Hence the Public has the Right of Regulating Descents, and all other Conveyances of Property, and even of limiting the Quantity and the Uses of it. All the Property that is necessary to a Man, for the Conservation of the Individual and the Propagation of the Species, is his natural Right, which none can justly deprive him of: But all Property superfluous to such purposes is the Property of the Publick, who, by their Laws, have created it, and who may therefore by other Laws dispose of it, whenever the Welfare of the Publick shall demand such Disposition. He that does not like civil Society on these Terms, let him retire and live among Savages. He can have no right to the benefits of Society, who will not pay his Club towards the Support of it.”

    Some of the founders were wise men. Some were scoundrels. Some were both. None of them foresaw the world we live in. None of them even foresaw the 14th amendment. [Back when we were still good Methodists] Ann used to accuse me of caring more about the Constitution than I did the Bible, and I still think it is a remarkable document. I worry about the crabbed and narrow reading our courts now give to the 4th, 5th, 6th, and 14th amendments and the recently broad, atextual, reading given to the 2nd. I worry about the court’s willingness to treat a corporation like a person when that helps big business, and its confusing willingness to disregard corporate structure when that suits its agenda.

    I’ve gone on too long. We spent the day shoveling gravel at the lake while I guzzled Diet Mt Dew (after a month off of caffeine) so I’m up at 4:00 spouting my amateur ramblings about politics. Hug [your wife] and the boys for me. Then let the boys know what will happen to them if they ever treat any woman the way Trump treats all of them. Talk to you later.

    6
  30. Joe says:

    When I’ve brought this up before, people here have told me for years now that it’s entirely unreasonable to expect Congress to exercise more direct control over how money is spent—well, perhaps people will finally see the tradeoffs that come with that viewpoint.

    @Andy: Just saying, I have not been one of those people for just this sort of reason.
    @Jen and Andy: I agree with Andy‘s first post that these are “paused” to provide an arguably defensible basis for the chaos-inducing cutoff. I am less sanguine that they will be released from the pause anytime soon, certainly not in two weeks.
    I understand the “shock and awe” of this to get across the “we mean business” message, but I am also certain that leaving the programs in a shambles even if they are restarted in some form of fashion is also a goal, not simply collateral damage.

    1
  31. Kathy says:

    There’s an old joke about two Soviet citizens talking politics.

    Ivan: Who invented communism, politicians or scientists?
    Mikhail: Politicians. Scientists would have tried it on mice first.

    This reminds me the over-revered American founders were also not scientists.

    2
  32. Kingdaddy says:

    Without a working separation of powers, madness happens. The NY Times has this headline:

    Trump Administration Offers Millions of Federal Workers Payouts to Resign
    The move, which could dramatically reduce the size of the federal work force, appeared to stretch the limits of President Trump’s authority.

    1
  33. Matt Bernius says:

    @Kingdaddy:
    This is such a terrible idea both in terms of the one time cost and the long term impact. That’s before we hit the entire sanewashing thing.

    Also speaking of one time costs with long term impacts, the 4 years of back pay for doing nothing that they are awarding to service members who were discharged due to vaccination non-compliance is also doing to do wonders from both an unpredicted cost perspective AND a moral level for all the folks who stayed in the service and actually… Checks notes… worked those for years

    2
  34. @Andy: Could you explain to me why you think his temporary suspension of spending for review is legal? This is not my understanding, but maybe I am missing something.

    3
  35. @Andy: I would state that you are being quite forgiving on the firing of the IGs situation.

    I think your position would be more persuasive if Trump had at least pretended to comply with the law.

    5
  36. Ken_L says:

    Far from resenting becoming another White House agency, House Republicans are giddy with “excitement” that they now have a dictator to tell them what to do. It beats all that negotiation and compromise crap they used to have to go on with.

    House Majority Whip Tom Emmer tells the WSJ, that’s a useful weapon to have in your arsenal when dealing with unruly members. “It’s actually exciting,” Emmer explains. “You say, ‘I mean, this is what Trump wants. Do you want me to have the president call you directly?’ — or, ‘I don’t think you want him coming into your district and telling your voters that you’re the one standing in the way of the Trump agenda?’”
    (From one of today’s Politico email newsletters.)

    1
  37. BTW: I plan to continue thinking and writing about all of this.

    One thing I will say is that while it is undeniable that Congress, and past presidents, have created a lot of the context for what is happening at this stage I am not convinced that a good bit of it is actually legal, but I may proven incorrect.

    Still, just because something can be done does not mean that it should be done. Scale, intent, and outcomes matter. I think that needs to be kept in mind,

    2
  38. just nutha says:

    @Kingdaddy: @Matt Bernius: Sorry, but the limits of Presidential authority extend as far as whatever Congress won’t pry from his fingers or impeach him over. OIW “To infinity and beyond!”

    “And another one’s gone, and another one’s gone, and another norm bites the dust,”

    2
  39. Winecoff46 says:

    @Kingdaddy: respectfully, this topic (offering millions of federal workers payouts to resign) should be the basis of a separate blog post, because the implications and potential impact are huge, IMO.

    4
  40. Gustopher says:

    @Kingdaddy: Where does Trump get the money to do payouts to get people to resign? Is this something that congress has allocated money for?

    Or is it just more lawless shit from the lawless administration?

    2
  41. wr says:

    @Joe: Hey Joe — Always nice to see the Joe with the capital J and the cute puppy and the interesting thoughts as opposed to your lower-case, lower-class doppelganger!

    2
  42. Matt Bernius says:

    @Winecoff46: agreed, it does deserve is own post. I am waiting for more details before I start looking into writing it.

    1
  43. Grumpy realist says:

    Speaking as someone working at the USPTO, it’s turning into chaos here while we try to do our jobs.

    Nobody knows what is going on, nobody knows what will happen.

    Considering how long it takes for the federal government to carefully investigate and update standard policy (we still haven’t gotten an update to the Manual of Patent Examination on how provisional dates and prior art dates intersect, even though there are a few legal decisions on the books), what’s going on right now is chaos. Vaguely sketched “policies” where we’re being pushed to make decisions quickly, with no explanations or answers made for exactly how this will fit in with existing retirement systems or how it fits in with requirements for vesting, being able to carry our health care with us when we retire, how this “buy-out” fits in with the calculation for our pensions, or anything.

    I’m furious that the average American thinks so little of the service that we federal employees provide them that they are perfectly happy to watch the dismantlement of all that has been built, all the careful checks and balances gone in the wind. The U.S. government has had for years a competent, politically disinterested, professional civil service core who worked for salaries that were much lower than what we could get in the private sector. In exchange, we were provided with better benefits and the ability to carry out our work professionally, without fear and without politics.

    Well, that’s now dead.

    2
  44. Kevin says:

    @Grumpy realist: I just want to disagree with the end part. “The average American” is not aware of most of the work you do, for good and ill. I work on a computer system that has undergirded the financial system for the past 60 years, and it’s routinely ignored when it comes to any discussion of how the financial system runs, or future planning. Because it just works, and has for decades. It’s not until the powers that be try removing it that they realize there’s nothing out there that can do the work that it does for the price it does.

    Some Americans, myself included, are very aware that a large part of what makes our lives historically easy is the Federal workforce. We believe you need more money, and more people. And others, well, they’ll learn.

  45. Mel says:

    @Andy: legitimately, do you have a blog? Because I would fucking love to read it if so.