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!
