Power of the Purse V: How Transformations at the National Level Threaten Federalism

David Super

     In four recent posts, I explained how President Trump is seizing large parts of the Power of the Purse from Congress and how this has led to restructuring within Congress, the Executive Branch, and the courts.  In general, those in each branch adept at bipartisan problem-solving have been sidelined in favor of those that are either hyperpartisan themselves or at least unwilling to moderate the President’s hyperpartisanship.  In this final post in this series, I examine how the new, presidentially driven federal Power of the Purse is seriously undermining federalism. 

     I have the utmost respect for the work of Heather Gerken, Jessica Bulman-Pozen, and others describing how states led by the party out of power in the national government may leverage federalism to provide an effective opposition.  We certainly have seen plenty of that since President Trump has resumed office.  My focus here, however, is the reverse.  Rather than considering how oppositional states may force moderation in federal policy, I consider how the President, having seized a sweeping Power of the Purse, may force states to moderate their opposition to his policies. 

     Presidential abuses of the Power of the Purse have been little litigated for the simple reason that the Power of the Purse has resided with Congress.  When federal agencies have reduced states’ funding, it generally has been pursuant to specific statutory directives.  Courts have afforded federal agencies Chevron deference in interpreting those statutes but have not suggested broader federalism concerns are in play. 

     The Supreme Court’s innovations in federalism jurisprudence over the past few decades largely have focused on Congress’s intrusions on states’ prerogatives:  selecting public officials, participating in spending programs offered by the federal government, allocating staff time, and general policymaking.  Cases restraining federal courts’ intrusions on state courts’ jurisdiction are somewhat older. 

     The President’s seizure of the Power of the Purse has opened up a new and far more dangerous threat to states’ sovereignty.  The Court’s concern about fiscal coercion of the states – either from conditions tangential to the nature of the federal funding put at issue or from the enormity of the federal funding at stake – has involved legislation enacted by a Congress in which every state is represented.  Perhaps federalism needed an additional boost from the Court, but the affected states were not entirely defenseless.

     The Trump Administration’s actions threatening or cutting off funds flowing to Democratic states operates independently of any congressional action.  The states that it has targeted most – California, Colorado, Illinois, Minnesota, and New York – contributed no electoral votes to President Trump in any of his campaigns.  None is likely to be decisive in the 2028 presidential election.  He has little political reason to refrain from abusing those states.

     By contrast, all five have Republican representatives who might well resist voting for legislation targeting their home states.  If any one of the five states’ Republican delegations defected, hypothetical funding cut-off legislation could not pass the House.  None of the five target states has a Republican senator, but the frequent need for supermajorities in the Senate makes senators leery of incurring the personal enmity of senators feeling that their state is being singled out. 

     The Administration has made little effort to conceal its punitive partisan motives.  It issues angry press statements about errors, but as a district court noted Thursday “[a] generous reading of the record provided to this Court falls far short of the type of proof which might substantiate the government’s sweeping claims of fraud.”  Its vitriolic denunciations of Minnesota appear to depend entirely on an abuse of pandemic feeding programs that occurred under the first Trump Administration and that was caught and prosecuted under the Biden Administration.  (President Trump deserves no blame for the scandal nor does President Biden deserve credit for the arrests and prosecutions – attributing the routine actions of career civil servants to presidents is deeply deceptive – but the Administration insists on playing that game, which does not reflect well on it.) 

     Data in the two largest programs affected confirms that the Administration’s actions are entirely partisan.  The Department of Health and Human Services measures Medicaid improper payments in about one-third of the states each year.  Two of the Administration’s target states were in the set released this winter:  Illinois had an overall improper payment rate of 1.2% while Minnesota had an overall rate of 2.2%.  By contrast, Idaho’s improper payment rate was 6.1%.  Some blue states that have been less vociferous in opposing the Administration’s policies also had improper payment rates well above those of Illinois and Minnesota. 

     Data from the Supplemental Nutrition Assistance Program (SNAP) tells a similar story.  The payment error rates the Administration released last summer showed two of the target states meaningfully above the national average, one of them almost right around the national average, and two others meaningfully below the average.  By far the highest error rate was Alaska’s, which was more than double that of four of the five target states.  Red Florida and Georgia both also had higher error rates than any of the target states and yet have escaped the abuse the Administration has heaped on its perceived enemies. 

     This is not normal.  During the late 1990s, Texas’s Food Stamp Program had egregious problems:  a high error rate, precipitous declines in participation among eligible working poor families, and some pretty clear violations of federal law.  The Clinton Administration was well aware of these problems but refused to do anything lest its actions be seen as an attempt to embarrass Governor George W. Bush, whom it thought might run for president. 

     The flexibility and relative invisibility of the President equip him to coerce states far better than Congress can.  The President’s effective ability to close programs and interrupt federal funding without congressional approval allows him to buy bits of states’ sovereignty retail.  President Trump purported to pardon Colorado County Clerk Tina Peters from her convictions for tampering with voting machines despite having no such authority over state crimes.  When Colorado declined to release her, the Trump Administration closed an important federal laboratory in Colorado as well as reportedly threatening other federal installations in Colorado and waging its campaign against the state’s funding in human services programs.  Governor Polis relented and commuted Ms. Peters’s sentence.  Whether or not President Trump was holding “a gun to the head” of Governor Polis, his weaponry proved sufficient for the task.   

     Whatever one thinks of Ms. Peters’s conviction – the fact that she was charged and convicted in a deeply conservative county suggests that her actions were far beyond the pale – this is a massive transfer of sovereign power.  When the President can use federal tax dollars to buy the states’ sovereign pardon power, and to effectively legalize violations of states’ election laws, we are well down the road to subordinating states fully to the federal administration.  You can continue to rattle on about your Buffalos or your Golden Gophers, much as Brits fixate on Arsenal or Manchester United and Egyptians obsess about Al Ahly or Zamalek, but the President will get his way on anything he really cares about. 

     Actions of the other two branches of the federal government have facilitated this growing fiscal dictatorship.  Many of the spending cuts in last summer’s One Big Beautiful Bill Act came in the form of large shifts in the costs of Medicaid and SNAP to the states.  (These cuts are difficult to reconcile with Republicans’ image as the party of states’ rights.)  We are already seeing dramatic participation drops in SNAP and likely will see something similar in Medicaid when the most destructive provisions take effect after the midterm elections. 

     These cuts seriously weaken states’ finances, making them more vulnerable to the President’s fiscal threats.  They also raise the question of whether the Administration will fully implement the cuts against states that accommodate the President by praising his initiatives, by turning over confidential information contrary to law, and by adjusting their election laws to his liking. 

     The Supreme Court, too, has hampered states’ abilities to defend themselves.  In April 2025, it held that states lack the irreparable injury required to obtain prompt restoration of federal funds if they can afford to continue the programs in question.  Three months later, it held grantees that cannot afford to pay the cost of a program cannot get funds promptly restored because the federal government likely would not be repaid if it ultimately won the case.  So whether the funding stream is large or small, and whether the state is flush or hard-pressed, the President can withhold federal funds and potentially make the state wait years for the funds to which they are entitled under federal law. 

     With almost all states required to balance their budgets annually, this leaves them with little option.  Ironically, if the President’s blundering with Iran causes a recession, his leverage over states will grow even more.  This threat to states’ sovereignty is vastly greater than those addressed in the Court’s prior federalism jurisprudence.  And a willful President can do far more harm to a state’s finances than a federal court hearing challenge to a state agency’s violation of federal law. 

     Deep Throat told Woodward and Bernstein to “follow the money.”  That is also good advice for those fearing the loss of our democracy.   

Why Does Trump Want the Save America Act? The Answer Should Worry Us.

Ian Ayres

On Wednesday, President Trump threatened to block the extension of the surveillance program, Section 702 of the Foreign Intelligence Surveillance Act or FISA, which expired on Saturday, unless a measure to reauthorize also included his beloved elections bill, the SAVE America Act. 

Trump has called passage of the SAVE America Act his chief legislative priority and has continually applied pressure on Senate Republicans to force the passage of the bill.  

Why does the President care so much about the Act’s passage—especially since it is abundantly clear that he does not have sufficient Senate votes to overcome a filibuster?

Neoclassical economics asks us to reason from a presumption that actors are rational.  Some observers find the President's recent behavior unintelligible on those terms, but I want to take seriously the possibility that there is a coherent reason behind his fixation, and to walk through the candidates.  The rational hypothesis that survives scrutiny is the one that, most of all, we should not want to be true.

The most natural reading of the SAVE Act is that the President sincerely believes large numbers of noncitizens are voting in federal elections.  But the best estimates put illegal noncitizen voting at a few dozen ballots out of more than a hundred fifty million cast.  No rational persons fears federal noncitizen voting.

A second reading is that passage would deliver the 2026 midterms for Republicans, as the President has claimed it would.  It will not.  The Act’s onerous proof-of-citizenship requirements only apply to new registrants, including first-time voters and those who move across state lines.  It thus cannot deliver a Republican wave in the 2026 midterms, because the voters who will decide those races are already on state rolls.  

A third reading is the long game.  As people move, marry, or turn eighteen, more must register or reregister to vote, and on these people the Act’s effects would compound.  Jacob Slaughter and I estimated the electoral impacts of the SAVE Act, and found the longer term impacts to be at best mixed. In the long run, the Act might modestly favor Republicans.  But the President has little incentive to spend present political capital for the possibility of marginal gains that will accrue long after he appears on any ballot. And reasonable observers question whether President Trump cares much about the success of the Republican party after he is no longer holding political office.

A fourth reading worth mentioning is distraction – that the Act is being elevated to draw attention from other liabilities, including the President's connection to Jeffrey Epstein.  The hypothesis proves too much.  It could be wheeled out to explain almost any of the President’s high-salience policy initiatives.

That leaves a fifth reading, and it is the most disquieting one.  The Act has virtually no prospect of passing the Senate in its current form.  If the President convinces the public that the Act is necessary, and Congress refuses to enact it, he can claim that the integrity of the next election is in doubt and that an executive remedy is justified.

By this interpretation, the President's campaign for the Act builds the predicate for unilateral action: the suspension or federally supervised disruption of the midterm elections, sufficient to secure continued Republican control of the House.  This is not as speculative as we would hope.  Federal troops and law enforcement agents have been deployed to Los Angeles, Washington, Portland, and Chicago under contested theories of executive authority.  A draft executive order circulated among Trump allies would declare a national emergency to ban mail-in ballots and voting machines.  And recently, the President issued a different executive order attempting to grant his Postal Service unprecedented federal control over who is eligible to vote by mail.

A rational plan of election interference is certainly a more elaborate explanation than what the available evidence requires.  Behavior that looks engineered has often, in this Presidency, turned out to be simply erratic or impulsive. 

But if it emerges that my bad-faith reading is even partly right, it points to a highly uncomfortable move Democrats might consider: passing the SAVE Act.  Doing so (perhaps with a pledge to revisit the legislation in 2028) could, in a perverse way, be in the best interests of our democracy.

A Congress that passes the Act would deny the President the legislative failure he needs to justify his election intervention to the public.  If asked to rule on such an intervention, the Supreme Court might also be more likely to strike down executive action that premised on insecure voting than executive action taken where Congress has been silent.

Such a strategy is fraught, and comes with the repellent cost of disenfranchising millions of Americans.  But the case for it grows with the plausibility one assigns to possibility that President Trump will use the bill’s failure as a justification for doing something much worse.

Remembering Gordon Wood: Religion and the Republic

Guest Blogger

Arvind Kurian Abraham

Gordon S. Wood, who tragically passed away, was arguably one of the greatest historians of the early American republic of his generation. His death leaves an enormous void, not merely in the academy, but in public life, at precisely the moment when Americans most need the kind of careful, nuanced, evidence-driven historical understanding that Wood devoted his life to providing. Nowhere is this loss felt more acutely than in the debate over religion and the founding of the American republic, a debate that continues to generate far more heat than light, and one that Wood illuminated with characteristic brilliance.

Two competing claims dominate public debate about religion and the American founding. The first holds that the United States was founded as a Christian republic, citing the religious practices of early federal governments as evidence. The second insists the founding was essentially secular, resting its case on the writings of Jefferson and Madison. Gordon Wood’s scholarship did not confirm comfortable narratives. It complicated them.

He noted that while some Founding Fathers such as Patrick Henry, Samuel Adams, John Jay, Roger Sherman, and Elias Boudinot were devout Christians, several leading figures were not. Shaped by Whig liberalism, the writings of John Locke, and the influential Cato's Letters by John Trenchard and Thomas Gordon, figures like Jefferson and Madison viewed religious enthusiasm as a kind of madness, the conceit, in Wood's own rendering, "of a warmed or overweening brain." Few were outright Deists in the strict sense, that is, believers in a clockmaker God indifferent to human affairs. Some were proto-Unitarians who denied miracles and the divinity of Christ, and who described the Christian church, in the words of South Carolina historian David Ramsay, as "the best temple of reason."

One of Wood's most penetrating insights was his recognition of how completely the religious landscape of America had shifted between the founding moment and the early republic, in ways that the Framers had neither anticipated nor designed. The old colonial churches were in decline, in their place rose newer, more dynamic denominations. The Baptists grew from 94 congregations in 1760 to 858 by 1790, becoming the single largest denomination in America. The Methodists, with no presence at all in 1760, had established over seven hundred congregations by 1790. Their uneducated itinerant preachers, willing to preach on town greens, racing fields, ferries, and in the churches of rival denominations. The expansions of religiosity in American society was part of the phenomenon known as the Second Great Awakening.

Jefferson, the Founding Father who had pushed furthest toward a secular conception of liberty, exemplified the gap between founding expectations and social reality. He had always maintained the outward forms of religious observance, attending church and serving on his local vestry, owing not to faith but to his deep aversion to personal controversy. Jefferson’s Notes on the State of Virginia and the preamble to the 1786 Virginia Bill for Religious Freedom made clear that a citizen's civil rights were no more dependent on religious views than on opinions about physics. Jefferson was a sharp critic of orthodox Christianity. In fact, he believed that Trinitarian Christianity would die out and be replaced by Unitarianism.

Wood pointed out that after being attacked in the 1800 presidential campaign as a "French infidel" and "atheist," Jefferson became more deliberately visible in his public religiosity, speaking favourably of religion in his first inaugural address and attending church services held in the chamber of the House of Representatives. The federal government even permitted the U.S. Marine Corps Band to play religious music for the services. This was not a sign that he had changed his beliefs. Rather, it was an acknowledgment of the social reality of popular religion, which he could not ignore as president. Wood's history poses a serious methodological challenge for “history-based” approaches to constitutional interpretation. If post-ratification practices were products of political expediency rather than reflections of constitutional principle, can those practices legitimately serve as evidence of the Constitution’s original meaning or the founding generation's settled understanding of its limits?

Wood also argued that Jefferson had fundamentally misread why he had won the Virginia Assessment fight. The bill would never have passed, without the overwhelming support of dissenting evangelical Presbyterians and Baptists who simply hated the Anglican establishment and did not care what Jefferson's preamble said. "It was not enlightened rationalism that drove these evangelicals," Wood wrote, "but their growing realization that it was better to neutralize the state in matters of religion than run the risk of one of their religious opponents gaining control of the government." Wood's analysis carries a pointed warning for scholars who treat the Virginia Assessment controversy and Jefferson and Madison's writings as the authoritative blueprint for understanding what the founding generation had in mind on questions of state and religion.

By 1811, even New York's Chief Justice James Kent, who privately called Christianity a barbaric superstition, felt compelled to rule that blasphemy against it was punishable under common law, so powerful had the popular evangelical climate become, according to Wood. The settlement that eventually emerged, voluntarist, competitive, passionately evangelical, and distinctly Protestant in character, was one that neither Jefferson nor Madison had designed and that few among the founding generation had fully anticipated. In an era when the history of religion and the founding is routinely employed for political ends, Gordon Wood's guiding voice is one that will be dearly missed.

Arvind Kurian Abraham is an SJD Candidate at Harvard Law School. You can reach him by e-mail at aabraham@sjd.law.harvard.edu.

Second Annual Aspiring Free Speech Scholars Workshop

Guest Blogger

The Power of the Purse IV: Redistributing Power among the Courts

David Super

     As I previously described, the second Trump Administration has dramatically shifted the Power of the Purse from Congress to the President.  Accompanying this change have been internal structural transformations of both Congress and the Executive Branch that have concentrated power in a few highly partisan hands and damaged or destroyed mechanisms that brought a broader range of views to bear.  These transformations are both causes and consequences of the more visible transfer of power from Congress to the Executive.  This post considers how the President’s seizure of greater fiscal powers has been accompanied and facilitated by a subtle but crucial power shift within the judiciary. 

     Here, a relatively efficient structure allowing timely resolution of disputes on their merits has given way to one that tends to keep the judiciary on the sidelines.  Judicial restraint, of course, is a long-honored value in our system.  Much of its rationale, however, has been that the “political branches” can take care of themselves.  That is an awkward fit for disputes in which the President is depriving Congress of perhaps its most important means of protecting its prerogatives:  the Power of the Purse.    

     For decades prior to this Administration, the federal courts had a fairly stable division of labor on spending matters.  Questions of general law – the interpretation and constitutionality of spending statutes and regulations – were addressed by federal district courts.  Where officials applied policies improperly denying individuals or organizations the benefits they were entitled to receive, the district courts struck down those policies, with the Supreme Court’s blessing.  District courts could act quickly to respond to recipients’ urgent need and had sufficient powers to adapt remedial orders to whatever violations they found.

     Disputes over payments allegedly due under the terms of individual federal contracts went to the Court of Federal Claims.  These cases typically focused on the terms of the given contract and factual issues about whether the contractor had met those terms rather than broader questions of federal law.  The Court of Federal Claims has far narrower remedial powers, but with the narrow disputes before it these were adequate.  If the federal government refused to pay for goods that in fact met contractual specifications, a simple money judgment was all that was needed.  The Court of Federal Claims was slow, which was a genuine problem, but at least it could eventually make financially strong contractors whole by awarding interest penalties under the Prompt Payment Act.

     Now, the federal government is systematically refusing to make payments not because of good-faith disputes about contractual terms or vendors’ compliance but because the Administration is asserting an aggressive new theory about the Separation of Powers.  Specifically, it is arguing that the President is free at any time to reformulate the interests of the United States notwithstanding contractual terms or duly enacted statutes. 

     Whatever one thinks of the merits of this theory, it is very much the kind of dispute that district courts commonly hear and worlds apart from those in the Court of Federal Claims.  To the extent that the Administration’s theory is incorrect, overall or in particular cases, a court adjudicating its actions obviously may need to issue extensive remedial orders, which the Court of Federal Claims lacks the power to do.  That is particularly true given this Administration’s penchant for disregarding court orders.  Because spending programs often target people and small entities in great financial need, payments years late, even with interest, often cannot undo the damage of withheld funds:  agencies that close often lose the capacity to resume their prior work. 

     Treating the Administration’s unilateral terminations or restructurings of federal spending programs as a payments problem fundamentally misconstrues what is at stake and Congress’s purposes in providing for that spending.  Although litigation is often brought, and standing established, by the entities that had been direct recipients of funds, programs’ purposes rarely are just to spend money:  Congress sought to assist a particular set of individuals it deemed in need or a designed set of entities to meet some social purpose.  The harms from ignoring those human needs and social problems often will be irreparable. 

     Moreover, judges on the Court of Federal Claims lack life tenure and other guarantees of independence afforded judges on district courts and other Article III tribunals.  President Trump has aggressively assaulted the independence of other bodies long recognized as independent.  Should the Court of Federal Claims ever seriously impede his agenda, one might expect he would use his considerable statutory powers to direct sensitive cases to judges of his choosing.  That would be much harder with life-tenured district judges. 

     The Supreme Court has acknowledged this reality only in part.  It has allowed district courts to continue to hear challenges to unlawful policies but prevented those courts from ordering payment of improperly withheld funds.  It also specifically warned district courts against granting interim relief against the government in those cases:

And while the loss of money is not typically considered irreparable harm, that changes if the funds “cannot be recouped” and are thus “irrevocably expended.” Philip Morris USA Inc. v. Scott, 561 U. S. 1301, 1304 (2010) (Scalia, J., in chambers). The Government faces such harm here. The plaintiffs do not state that they will repay grant money if the Government ultimately prevails. Moreover, the plaintiffs’ contention that they lack the resources to continue their research projects without federal funding is inconsistent with the proposition that they have the resources to make the Government whole for money already spent.

Of course, if any entity challenging the Administration’s illegal withdrawals of funding did assert that it could pay back the funds if it lost its case, the Supreme Court has indicated that entity would itself lack the irreparable injury required to obtain an injunction.    

     This effectively grants the Administration a two-year runway to eliminate congressionally mandated programs no matter how absurd its rationale may be.  Perhaps some money might eventually be disbursed, but by then the mechanism for achieving Congress’s purposes often will be damaged or gone altogether.    

     A similar picture seems to be coming into view with respect to one of the Administration’s other assaults on Congress’s Power of the Purse:  the tariffs it unilaterally imposed and collected for the better part of a year.  At this writing, it seems likely that many of those that paid this presidential levy will not receive refunds; those to whom the cost of the tariffs was passed along through price increases almost certainly will not.   

     This is far from inevitable.  Having acknowledged that district courts can hear challenges to unlawful policies obstructing the release of funds Congress has directed to a particular problem, the Supreme Court could certainly allow district courts to grant relief sufficient to meet to the problem the Administration’s actions present.  This would ensure that, as the Supreme Court proclaimed two years ago, “[i]f the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”  As it did in granting President Trump sweeping immunity from prosecution in the absence of any textual authority for doing so, the Court might “focus on the enduring consequences upon the balanced power structure of our Republic.”  The Court demonstrated in 2024 that it observes an emergency exception to the usual rules of decision for grave threats to the separation of powers.  Few such threats are potentially more far-reaching than depriving Congress of its Power of the Purse. 

     The Court certainly could draw guidance from Contract Law, which is capable of distinguishing between the vast majority of cases involving routine, one-off disputes and a few exceptional instances of systemic bad faith.  Insurance companies contract with vast numbers of people, who assume they will pay in good faith if the insured suffers a covered casualty.  Resisting payment of lawful claims can enhance an insurance company’s margin, but it also undermines the whole concept of insurance.  Accordingly, courts have recognized that insurance companies denying claims in bad faith should not benefit from Contract’s usual rule disallowing punitive damages.  The federal government, too, assumes financial obligations to vast numbers of people, who trust it to pay in good faith.  If this Administration is effectively free to refuse to do so, the federal government’s ability to contract to meet the country’s needs will be damaged for decades to come. 

     It also should be noted that the other two types of presidential intrusions on the Power of the Purse – spending money without a valid appropriation and declining to collect taxes Congress has legislated – are unlikely to be vulnerable to judicial challenge because of the Court’s interpretation of the “cases and controversies” requirement of Article III.  If the Administration is free to impose taxes and to withhold appropriated funds for a year or two no matter how unsustainable its legal theory might be, Congress’s Power of the Purse is well and truly gone as anything more than a ministerial function. 

     @DavidASuper.bsky.social @DavidASuper1

The Power of the Purse III: Shifts in Power within the Executive Branch

David Super

     As I explained last week, President Trump has been systematically wresting away from Congress large parts of the Power of the Purse – the power to say what revenues will and will not be collected and what funds will and will not be spent.   His unlawful settlements of lawsuits with himself, paid with public funds, is but a small part of this.  Yesterday I discussed how the President’s expanded fiscal powers have affected Congress’s internal organization in a way likely to permanently reduce its capacity for negotiation and compromise.  Today I explore how the Power of the Purse’s shift between the branches of the federal government has been accompanied by important shift in power within the Executive Branch.  In particular, power has been further concentrated within the White House complex at the expense of the departments and agencies and has been shifted from attorneys to political operatives.  The effect of these changes, like that of moving fiscal power from Congress to the President, has been to reduce significantly the number of people and perspectives that influence these important decisions. 

     Front-line departments and agencies historically have been the Administration’s envoys to congressional authorizing and appropriations committees with jurisdiction over their activities.  To be sure, the President appoints cabinet, subcabinet, and other top officials and may direct their actions.  Nonetheless, these officials have had a compelling reason to play a moderating role within any administration:  they are the officials most responsible for accommodating the views of Members of Congress of both parties to avoid political explosions.  When the White House directs them to do something that will anger Congress, the agencies push back, with subcabinet officials reaching out to the major organs within the White House or cabinet members engaging the President or Chief of Staff.  This was often a messy process, but it also tempered the natural partisanship of the Executive Branch with the bipartisan perspectives of Congress. 

     Beginning with the Reagan Administration, executive power has become increasingly concentrated in the White House.  Then-Professor Elena Kagan celebrated this process in her famous article on Presidential Administration.  It has rapidly accelerated under the second Trump Administration. 

     Some of the accelerating concentration of power is the simple result of personnel.  Even compared with his first Administration, President Trump has filled many senior positions with lightweights having minimal qualifications and little independent stature.  Former Fox News commentators outnumber former governors.  By contrast, OMB Director Russell Vought is reprising his role in the first Trump Administration; he is highly competent and determined to achieve particular ends.  Any cabinet secretary tempted to challenge his decisions likely would be badly outmatched.  Nor are agencies fully free to strategize internally with representatives of the Department of Government Efficiency (DOGE) (political commissars?) embedded within management structures. 

     More broadly, President Trump’s seizure of much of Congress’s Power of the Purse has dramatically reduced Congress’s importance and hence the importance of agencies’ liaison roles.  Russell Vought has made clear to agencies that money comes from OMB and that it is OMB, not Congress, that agencies must appease. 

     OMB has repurposed the obscure “apportionment” process to impose restrictions on funds that depart dramatically from the terms of congressional appropriations.  Indeed, OMB has ordered agencies to disregard Congress’s decisions about how much should be spent on a particular activity and obey the President’s budget proposal that Congress rejected.  Congress required apportionment decades ago to prevent rogue agencies from spending their appropriations at an unsustainable rate, not to empower OMB to override Congress’s policy decisions.

     President Trump used the apportionment process during his first term to block release of aid for Ukraine while he was trying to pressure President Zelenskyy to investigate the Bidens.  In addition to his first impeachment, this also led to bipartisan legislation requiring that all apportionments be made public.  After openly defying this requirement for months (declaring the apportionment website down for repairs), OMB then began issuing apportionments prohibiting agencies from spending moneys Congress had appropriated until they obtained OMB approval for a “spending plan”.  This effectively moved the substance of apportionments offline again.  (Prior administrations had required spending plans only in rare instances of agencies that had proven persistently fiscally irresponsible – and then only to ensure compliance with appropriations acts.)  Litigation eventually forced OMB to publish the final spending plans but leaves opaque what other OMB demands the agency had to accept to win approval.  Other apportionments require that OMB receive advance notice, and implicitly an opportunity to forbid, expenditures over a low threshold. 

     The mechanisms evolve, but the essence is clear:  meaningful policy control is centralized within OMB.  As congressional appropriations become less important, agencies’ soft power relationships of mutual accommodation with Congress become unnecessary and increasingly cut off. 

     As Congress’s current views have become less important, so have the views of past Congresses encoded in statutes.  Prior to this Administration, a consistent theme in fiscal policymaking was the need to avoid violating the Anti-Deficiency Act.  This could be done by committing or spending money in excess of available appropriations, by spending appropriated funds for purposes beyond those Congress specified or contrary to statutory limits, by transferring funds without statutory authority, or by spending funds without or contrary to an apportionment.  Violations of these requirements carry criminal penalties. 

     Political officials, even presidents, generally accepted that they had no right to ask their subordinates to take fiscal actions that government lawyers said contravened one or another statute and hence were crimes.  Presidents Obama and Biden reached disastrous fiscal deals with congressional Republicans because their lawyers rejected numerous plausible legal theories about how they could not continue operating the federal government after it hit the debt limit.  “The lawyers won’t allow it” became an effective all-purpose brush-off officials could use on Members of Congress, political allies, and others pressing for policy changes. 

     This Administration, seeking to “move fast and break things”, has largely removed agencies counsel from making key fiscal decisions.  And because those lawyers’ input largely springs from interpreting the collective, and often bipartisan, wisdom of Congress expressed through statutes, this move has further narrowed the inputs into fiscal decision-making. 

     As President Trump repeatedly orders federal employees to spend money without valid appropriations, he has had little trouble securing the cooperation of numerous federal employees despite the Anti-Deficiency Act violations entailed.  The Treasury Department’s General Counsel did resign rather than implement President Trump’s “weaponization” compensation plan with money from the Judgment Fund; perhaps he preferred not to commit a felony.  Others presumably are counting on the Trump Justice Department to ignore blatant violations of the Anti-Deficiency Act, which seems likely, but also that President Trump will pardon them before leaving office to prevent the next administration from pardoning them.  They also surely are recognizing that this Administration has largely gutted civil service protections:  the price of adhering to the law is likely losing their jobs.

     It is difficult to convey how much of what this Administration has done that violates one or another provision of appropriations or permanent law, and hence the Anti-Deficiency Act.  Much of what DOGE has done, and certainly the demolition of the U.S. Agency for International Development, the Department of Education, the Consumer Financial Protection Board, and other agencies, would appear to violate section 739 of Division E of this year’s Consolidated Appropriations Act and its predecessors in prior appropriations acts:

None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

But with agencies’ counsel thoroughly marginalized, nobody seems to care. 

     Many liberals vastly underestimated the institutionally transformative accomplishments of Ronald Reagan, a president whose intellect they disrespected.  Today, many do not appreciate the depth and likely persistence of President Trump’s restructuring of our public institutions. 

     Our next president may be one who seeks to rationalize and regularize the MAGA regime, as George H.W. Bush did for the Reagan Revolution.  Alternatively, our next president may be one determined to reverse much of what President Trump has done.  In either case, the institutions of the ancien règime simply are not there anymore.  A simple restoration is impossible just as we can never bring back the Grand Army of the Republic or the New Deal.  Those interested in rebalancing our major institutions should be thinking about how those institutions’ internal structures might be adjusted to support the desired alignment.  This is a deceptively difficult challenge. 

     @DavidASuper.bsky.social @DavidASuper1

It's All Politics

Joseph Fishkin

Well, they did it: On Tuesday evening, the Supreme Court found a way to make Callais worse.  They actually found several: they made an absolute partisan joke of the “Purcell principle”; they flagrantly, ostentatiously violated their own prior opinion in the long Alabama litigation in which they issued Tuesday’s order; they rewarded Alabama’s defiance of federal court orders; and they offered so very little in the way of reasoning as to make their action difficult to interpret as anything but lawless partisanship. But most importantly—and here finally we come to my topic in this blog post—SCOTUS did it by making the key implausible claim at the heart of Louisiana v. Callais, about racially polarized voting, just slightly sharper and more indefensible than it already was.

The official view of the Roberts Court is now as follows.  If every single Black person votes one way, and every single white person votes the opposite way, in every single election, forever, that is not even relevant to the question of whether voting is “racially polarized,” so long as this enduring disagreement crystallizes into political parties, meaning that the two groups populate two different parties.

And that is exactly what strong and enduring political disagreements tend to do.  I mean, where do you think political parties come from?  Sometimes a political disagreement is so deep, so durable, so all-encompassing, that it becomes the politics-structuring disagreement around which all other questions orbit. Then the political parties are going to try to organize themselves around that disagreement because that is what political parties are for.

The polarization between Black voters and white voters in Alabama is so extreme and so durable, from the Civil War all the way through the present, that it has outlasted a complete flip in the party labels.  Like strong magnets that flip all the way around instead of getting smushed together the wrong way, racial polarization in Alabama is so powerful that after Black Republicans became Democrats, white Democrats eventually had to become Republicans. Functional political parties reflect the most important political disagreements or cleavages in their polity. That’s their job.  In Alabama, the most important political cleavage in the state is clearly racial polarization.  Alabama is the second most racially polarized state in the nation.*

The Power of the Purse II: Shifts in Power within Congress

David Super

     Over the decades, the major institutions of our federal government have adapted to their assigned roles.  When those roles undergo a dramatic change, as they are in the second Trump Administration, their internal structures must adapt.  The changes may seem subtle, but new institutional habits can prove far more durable than most specific policy choices.  And in each case, these internal changes are moving us toward a more belligerent and less functional government. 

     My previous post showed how President Trump has wrested increasing parts of the Power of the Purse from Congress.  I promised a follow-up post considering how that transformation is rewiring each of the three branches of the federal government and federal-state interactions.  These are complex issues, and in the interests of readability, I am dividing this discussion into four distinct posts, beginning today with Congress. 

     Congress is the biggest loser in the current realignment.  President Trump’s approach here differs fundamentally from those of his predecessors.  President Ronald Reagan never had formal control over the House of Representatives, but during his first two years in office he leveraged his immense personal popularity with voters to dominate the House and guard against any open defiance in the Republican-led Senate.  He therefore did not so much seize Congress’s prerogatives as he bent Congress to his will while preserving its structure.  He wisely looked the other way when Members of Congress quietly jettisoned his most radical proposals while remaining true to his broad vision.  Republican Senator Bob Dole’s rebellion to save the Food Stamp Program is perhaps the most remarkable example of this.

     Republicans controlled Congress for most of George W. Bush’s presidency, allowing him to achieve his policy goals within the existing structure as well.  Like President Reagan, he set broad policy ends but generally respected Congress’s prerogative to craft the means.  During his first term, President Trump followed this model only for his 2017 tax cut legislation – which also proved to be one of his few legislative accomplishments. 

     Presidents Bill Clinton and Joe Biden tried to micro-manage Congress during their first two years, failed on many of their most important fiscal priorities, and lost control of Congress for the remainder of their presidencies.  President Barack Obama proved far more successful adhering to the Reagan-Bush model of broad goal-setting with deference to Congress on the details. 

     Republican control of Congress, and the relatively pliant Republican leaders of both chambers, likely would have allowed President Trump to achieve sweeping conservative policy successes through conventional means.  And, to be sure, his One Big Beautiful Bill Act made radical changes to a degree that his predecessors of both parties could only dream about. 

     But President Trump has been less interested in persuading Congress to enact his program than he has in stripping Congress of its powers.  This likely reflects in part his dislike for the cajoling and negotiating that prior presidents accepted as a part of the job.  (Perhaps he ought to read The Art of the Deal?)  At least as important, Russell Vought, his Director of the Office Management and Budget (OMB), brought a strong desire to expand executive power and allied with other exponents of executive unilateralism such as Elon Musk.  In less than a year and a half, President Trump and Director Vought have already arrogated much of Congress’s traditional power and driven structural transformations within Congress. 

     The biggest internal change Congress has experienced is the marginalization of the Appropriations Committees.  This change may sound technical, but it is profound.  Historically, the division within Congress between authorizers (those sitting on substantive committees other than Appropriations) and appropriators has been arguably as sharp as that between the two parties or between the House and the Senate. 

     As a lobbyist, I worked comfortably with both Democrats and Republicans, establishing numerous trusting relationships on both sides of the aisle and in both chambers.  But these relationships were all with authorizers, Members and staff from committees such as Ways and Means, Energy and Commerce, Finance, Agriculture, Education and Labor, and Health, Education, Labor and Pensions.  I went to the Appropriations Committees because my work required it, but I never felt comfortable there.  I never had any confidence that Members or staff of either party were being candid with me.  They had their own retinue of repeat-player lobbyists.  As was I most definitely not among them I was kept at arm’s length by Democrats as much as by Republicans. 

     Appropriators differ from their colleagues in several key ways.  Because they alone have to produce at least twelve pieces of legislation every year, and because the filibuster effectively requires that legislation to be bipartisan, appropriators are Congress’s most instinctive and experienced negotiators.  Extreme Members of each party serve on the Appropriations Committees, but they have to temper their ideologies to get anything done.  In addition, because appropriators are commonly trying to bring projects back to their states, they are quite vulnerable to retaliation.  They thus have strong incentives not to infuriate Members of the opposing party – an impulse that can infuriate Members of their own party.  Thus, in an increasingly ugly political system, appropriators’ institutional roles compel them to preserve civility, cooperation, and a focus on making government work.  Say what you will about “the Swamp”, but swamps are ecosystems.  We can fantasize about how a lovely temperate forest might be, but until that appears appropriators keep the swamp functioning and carry away toxins that could lead the whole system to crash. 

     Appropriators’ jurisdiction has eroded somewhat over the years.  Converting programs from discretionary to entitlement funding transfers most control from appropriators to authorizers.  The Affordable Care Act included large amounts for program administration so that Republicans could not strangle the program in its infancy if they took control of Congress.  Traditionally funding the federal government’s operations is a central function of appropriations. 

     President Trump, however, has shredded appropriators’ powers.  In March 2025 he signed a full-year appropriations bill written by Republican appropriators and then promptly impounded large amounts for programs he disliked. 

     President Trump also rejected the appropriators’ designation of much of that spending as meeting emergencies, which had the effect of erasing that funding.  This was perfectly legal but deeply humiliating for Republican appropriators as it abrogated a bipartisan deal going back several years. 

     A time-honored political script calls for a menacing outsider to threaten a beloved local program only to back down when the state’s valiant appropriator rides to the rescue.  Rural Republican appropriators thought they were being given such an opportunity to prove their worth to hometown voters when President Trump proposed rescinding the appropriations that sustain their local public broadcasters.  Under the illusion that they still mattered, the appropriators denounced the cuts, expecting that the President would play his designated role in the skit.  Instead, the President stood firm and humiliated the appropriators by forcing them to vote for the cuts that they had just said would be ruinous for their states. 

     President Trump’s One Big Beautiful Bill Act, enacted through reconciliation procedures that eliminate the need for bipartisanship, included operating funds for federal immigration agencies and aid for state and local governments that cooperate with these agencies – all traditional appropriations functions.  The new reconciliation bill pending in the Senate would further displace the Appropriations Committees’ jurisdiction, cutting them out of funding the operating costs of large, important federal agencies for years to come.  Few obvious limits prevent this mechanism from gobbling up vast swaths of the Appropriations Committees’ jurisdictions.

     Had any Members been foolish enough to attempt something like this under virtually any prior Appropriations Chair, appropriators on a bipartisan, bicameral basis would have devastated funding for activities in the offending Members’ districts.  Were Administration officials implicated, they could expect a $1 appropriation for their salaries the next year. 

     Today, however, Republican appropriators have sat by meekly as the institution they have worked so hard to lead is humbled.  Senate Appropriations Chair Susan Collins is facing a difficult re-election fight in which she dares not offend the President lest she dampen MAGA true believers’ enthusiasm.  No doubt she is concerned.  And Representative Tom Cole became a long-time member of House Republican leadership, and then House Appropriations Chair, by demonstrating loyalty to his party not by defending any committee’s prerogatives.  Democratic appropriators remain more committed to the institution – to the occasional irritation of their party leadership – but one can readily imagine Democrats using budget reconciliation to lock in funding for numerous liberal priorities next time they control the White House and both chambers of Congress. 

     A country whose electorate is split almost precisely down the middle has a dire need for bipartisan negotiation and compromise.  Negotiations are already extremely difficult with ignorant but loud voices in each party’s base screaming “betrayal” at even the most inevitable concessions.  Gutting the Appropriations Committees’ roles will only make that worse.  Reconciliation bills can establish programs with opulent funding when one party holds a federal trifecta (control of the House, the Senate, and the White House) only to be destroyed – before the programs have an opportunity to show their worth – as soon as the other party seizes control.  And all the while, the anger mounts.  Democratic governance will not be sustainable if this persists.

     @DavidASuper1 @DavidASuper.bsky.social

Reflections on Skowronek’s “The Adaptability Paradox”

Stephen Griffin

I’m sorry I didn’t participate in the symposium on Stephen Skowronek’s challenging new book, “The Adaptability Paradox.”  Skowronek probes in detail whether the Constitution’s commitments, especially to separation of powers and federalism, are maladapted to the democratized world created by the “rights revolution” of the 1960s.  As he says, “At the center of the analysis is a trade-off between wide political inclusion and the structural integrity of the Constitution.” (TAP, vii-ix)  This trade-off is expressed by the “adaptability paradox.”  Because I lack Skowronek’s concise and mannered means of expression, I’ll try to state the paradox in my own words.  The idea is that voiding the undemocratic parts of the Constitution in service of democratic principles yielded a new kind of inclusive regime which had no precedent in American history.  Further, the ultimate consistency of this regime with the parts of the Constitution that remained after this makeover is, at the least, untested and at the most, extremely problematic.  This problematic inconsistency has produced increasing dysfunction and, indeed, instances of outright derangement in how each branch of government operates.

After I read the book, I remarked to my fellow bloggers that I could hardly disagree with this diagnosis, at least in its outlines, because it resembles in broad outline the kind of argument I’ve been making off and on since my 1996 book American Constitutionalism: From Theory to Politics.  I’ll note the similarities.  In retrospect, in my 1996 book I was probably arguing two distinct theses at the same time.  One was a “mismatch” theory – the idea that the activist state represented by the New Deal was in considerable tension with the unamended Constitution.  The other was a “democratization” theory (although I did not use that term) – that our experience since the 1960s shows there is a problem operating the Constitution amid a democratic politics unknown to prior American history.  The latter thesis is of course closer to Skowronek’s argument.

I treated these theses as showing the constitutional system in a continual crisis since the 1960s.  The idea that you could have a crisis that, in effect, never ends has been questioned by some scholars and I probably should have found another way to describe what I was observing.  But I viewed the lack of Article V amendment as imposing a hard limit on just how far the Constitution could adapt.  In other words, adaptation through “informal” means has never struck me as a fully effective substitute for formal change.  This is also what Skowronek seems to believe.

The particular spin I put on the democratization thesis was that the full implications of democratization were concealed by the political consensus behind the Cold War even through the 1960s.  I put the theses together as follows: “In the 1960s the politicization of civil society increased rapidly, the legal restrictions on the electorate were for the most part abolished, and the United States experienced a full-fledged national democratic politics for the first time in its history. . . .The politicization of civil society and the democratization of the state had enormously expanded the scope of the national policy agenda.  The range of interests the national state now had to take into account approximated much more closely the range of interests in society.  But there had been no fundamental change in the ability of the national state (read: Constitution) to wield public authority and govern these contending interests.”

In my 2015 book Broken Trust I used studies by John Hibbing and Elizabeth Theiss-Morse to extend the argument that the democratization of American government led to constitutional problems.  Specifically, democratization produced a roiling, contentious and conflictual politics that was deeply at odds with how Americans think politics and government should work.  Accordingly, I argued, trust in government was permanently dented.

Compared to the accounts I offered in my prior work, Skowronek is far more acute and detailed on the impacts of democratization on Congress, the Supreme Court, and the presidency.  As one might expect, his account of the disastrous consequences for our constitutional order of the unitary executive theory is particularly well done and should be required reading in the nation’s law schools.

 While I admire Skowronek’s ability to illuminate the current dysfunction of our system of separation of powers, what he has to say, even as a descriptive-explanatory matter, about the relationship of federalism to the democratization of American politics is hard for many legal academics to hear.  If I read him correctly, Skowronek is saying that by shoving federalism concerns to one side in measures like the Civil Rights Act of 1964 and Voting Rights Act of 1965, we as a polity bought ourselves endless constitutional trouble.  And our current difficulties with separation of powers and the shunting aside of federalism concerns are related.  That is, the steady opponents of these measures, particularly although not exclusively in the South, turned to strategies that would make the presidency and eventually the Supreme Court itself more receptive to their point of view.  Indeed, the process that led to the recent decision in Louisiana v. Callais is arguably an example of what Skowronek is talking about.  Journalists like to describe the VRA as originating solely in 1965, when it is in fact the product of three distinct periods – 1965, the change in the status of section 5 of the VRA after the Allen decision in 1969, and the 1982 amendments.  Lawyers in the Reagan administration like John Roberts and Sam Alito as well as the legal conservatives generally were never reconciled to the last set of changes, with consequences we can all now perceive.  Legal scholars will have their reservations, but they need to reckon with Skowronek’s many insights.