Facing the Fundamental Choice: A Stronger or Weaker Federal Administration?

David Super

      Barely a day passes when I do not see some new plan for an anticipated “restoration” after President Trump leaves office.  As 2029 approaches, I am sure we will see many more.  Alas, I have yet to see a plan that thoughtfully engages with what should be the most foundational question in this process:  do we seek a strong federal administration or a weak one?  Or, put another way, is the goal to strengthen majoritarianism or to protect minorities that the majority may wish to trample? 

     The right answer to this question depends on how anti-MAGA thinkers envision the future.  If they seek to empower future majorities and the party that controls the presidency and Congress, presumably they believe that they will hold majority power for the foreseeable future once Donald Trump passes – or at least that a stronger executive will allow them to build more than MAGA can destroy when holding the reins.  The goal of this strategy presumably would be to make it impossible for the Republican Party to dominate power until it moderates and rededicates itself to democratic values, much as voters made Democrats wander in the wilderness for twenty of the twenty-four years between 1968 to 1992 because they perceived the party as being too far left. 

     Alternatively, if anti-MAGA thinkers believe that control of the federal government is likely to alternate frequently, they should limit the powers of any majority and support devices that allow minorities to block actions harmful to them.  This would be particularly true if they believe that MAGA is more efficient at destroying than they are at building. 

     Of course, Democrats want to be a persistent majority and believe they should have the majority of the electorate’s support.  But neither of those is the question.  The question is one of prediction:  do MAGA’s opponents believe they actually will be the majority?  And, related, will they make maintaining majority electoral support their top priority?  If so, then plans like dismantling the filibuster and remaking the Supreme Court might make practical sense.  If not, those moves would be disastrous. 

     I see no reason to believe that Democrats will persistently hold a majority in years to come:  I am convinced that Donald J. Trump will not be the last president to seriously threaten this country’s democracy in the near future.  Further, I believe the liberal-progressive movement, as it currently stands, is structurally incapable of doing what is necessary to have a plausible chance of preventing another ruthless MAGA president from taking office.  I therefore regard progressive proposals to raise the stakes for elections as not just misguided but profoundly reckless. 

     To start, alternating control of the White House would continue an entrenched recent pattern.  Democrats have won half of the last two, four, six, eight, and ten presidential elections.  The last Democrat to secure 53% of the popular vote was Lyndon Johnson over sixty years ago; in the intervening years, Republicans have surpassed 53% three times.  Although some progressives like to point to President Trump’s relatively low popular vote totals, in both 2016 and 2024 extremely conservative candidates won about 51% of the vote while candidates on the left took 49%; the two elections differed primarily as to which coalition was more fractured.  Even with the economy staggering and hundreds of thousands dying as the Trump Administration fumbled its response to the pandemic – failures that would have obliterated a Democratic candidate – President Trump still received almost 47% of the vote in 2020.

     To be sure, President Trump is quite unpopular now, but he will not be on the ballot again.  And his deep unpopularity has not translated into corresponding support for Democrats:  at this writing, only 38% of voters think well of Democrats compared with 55% hostile to them.  That is all but indistinguishable from Republicans’ 39% to 56% unfavorability rating.  This is not the stuff of which dynasties are made. 

     The purification of the Democratic Party has come at a cost.  For the first time in memory, Democrats hold no Senate seats from the 25 most conservative states.  Republicans hold three seats from the 25 most liberal states (Maine, Pennsylvania, and Wisconsin) and hence control the Senate.  The only consistently unreliable Democratic senator, Pennsylvania’s John Fetterman, won his primary against a representative with a solid voting record on the strength of progressive enthusiasm. 

     But current unpopularity is far from the biggest reason to think that Democrats will not be able to keep MAGA Republicans out of power.  The Establishment and Progressive Wings of the Democratic Party would do well to adopt the Gingham Dog and the Calico Cat as their mascots.  Each seems to view the marginalization of the other as a necessary predicate step to battling Donald Trump.  Neither shows much willingness to accept that, with the country almost evenly divided between Left and Right, defeating MAGA Republicanism is only possible if both moderates and progressives enthusiastically engage.  If either faction is vanquished, both will be vanquished. 

     To keep MAGA from regaining the reins of power, Establishment Democrats need to stop freaking out when progressive constituencies elect progressives.  And to keep MAGA from regaining the reins of power, Progressive Democrats need to stop endangering seats in purple or red constituencies by applying purity tests to candidates there.  Both need to stop supporting awful people just because they mouth their faction’s affirmations.  

     Although we may disagree about which positions so alienate moderates that they will cost the Party votes, it defies reality (and a vast political science literature) to insist that no such positions exist.  Similarly, although we may disagree about which positions are so denigrating to the value of human life that they will alienate progressives and cost the Party votes, it defies reality (and the everyday experience with people who have been insulted) to insist that no such positions exist. 

     Yet Democrats lack any workable mechanism to discuss together which positions are too electorally toxic and to discourage those in the relevant faction from weighing the Party down with those positions.  Instead, any reticence by Establishment Democrats is attacked as betrayal – likely causing some progressives to withhold their votes – while any complaints about denigrating statements are denounced as attempts at “political correctness” – likely alienating some moderates. 

     If they regain power, Democrats naturally will want to implement their program.  Parts of that program are broadly popular, but parts definitely are not.  They likely can afford to pursue some unpopular initiatives, but if they launch too many they will lose too many voters.  Conversely, if they slavishly follow the polls rather than ever leading, they will disappoint progressives and lose voter turnout in the next election.  Rather than being reflexively bold or reflexively timid, they must prioritize carefully.

     Alas, Democrats also lack a workable mechanism for prioritizing their coalition’s initiatives to avoid alienating too many voters at once.  Indeed, a great many progressives refuse to acknowledge that such trade-offs exist They fail to see that the middle- and long-term consequences of enacting multiple deeply unpopular measures at once can be devastating for vulnerable people, such as the immigrants and low-income people targeted when voters sweep MAGA back into power.  Conversely, many Establish­ment Democrats seem to reject any initiatives that lead voters out of their comfort zones, condemning the Party to always playing from behind and losing the enthusiasm of the many low-engagement progressive voters. 

     Compromises are the life blood of coalition politics.  Alas, compromise is largely infeasible with loud voices condemning any concessions “betrayal.”  Many progressives’ fierce objection to the Build Back Better Act, which would have been the most transformative social legislation in at least a decade and perhaps half a century, shows the near-impossibility of crafting compromises that do not split the Party.  And the constant denunciation of deals for what they do not include persuades low-information voters that Democratic officeholders are hopeless and not worth voting for. 

     All these problems might be remediable if the leaders of the various factions could negotiate definitive deals.  Unfortunately, neither major faction has leaders who can and do command broad deference.  Establishment Democrats have Minority Leaders Schumer and Jeffries, but neither has demonstrated, or even sought, the authority to commit their faction to compromises.  Progressives have even less deference to leaders:  Sen. Sanders did negotiate a common program with nominee-apparent Biden in 2020, but neither he nor Representative Ocasio-Cortez have made any regular practice of seeking deals with Party leaders.  In practice, because many progressive social media influencers’ click-rates, and incomes, depend on raising hyperbolic criticisms, any progressive leaders attempting such negotiations would likely pay a high reputational price. 

     This is not to say that the Democratic factions can never come together to defeat the MAGA threat to our country.  They did in 2020 when, led by African-American primary voters in South Carolina, they nominated a career politician with a thoroughly uninspiring record.  But the infrequency and brevity of these truces demonstrate that far too many Democrats see intra-party warfare, and advancing their policy programs even at great electoral risk, as more pressing than definitively defeating MAGA’s threats to our country’s core principles and the well-being of vulnerable people at home and abroad.  We are, for example, a far cry from the Hungarian progressives who cleared the field for non-Orban conservatives to end their country’s sixteen years of creeping authoritarianism or the Chileans who united behind a moderate conservative to end Pinochet’s rule. 

     As long as defeating MAGA remains only a conditional or intermittent priority – and in particular as long as the two main factions remain determined to subjugate one another in the pursuit of wholly unrealistic general election strategies – we will keep getting MAGA presidents and MAGA Congresses.  And because the second Trump Administration has clearly demonstrated that destroying programs and institutions is far easier and faster than building them, any accomplishments Democrats may achieve during their brief interludes in power will be extremely fleeting.  Democrats will not get far with any plans that depend on selling the trustworthiness of our federal government to other nations, to potential grant recipients here or abroad, or to prospective federal employees that do not want to suffer what hundreds of thousands did over the past year and a half.  This country elected Donald Trump twice; unless we can show a fundamental change in the structure of our politics, nobody is going to believe this was merely a fluke.

     We seem well on our way to an eight-year cycle in which Democrats have broad control for two years, a Democratic president is hobbled by one or both chambers of Congress for another two years, a MAGA president has broad control for two years, and the MAGA president remains in power but lacks a solid congressional majority for the final two years.   This cycle is becoming self-reinforcing.  Democrats’ brief intervals of control create a classic Tragedy of the Commons with every Democratic interest group demanding enactment of a maximalist version of their agenda in the brief moment when that is possible.  The result is too-much-too-fast for many low-information centrist voters, and the midterm elections are a disaster. 

     Programs Democrats pass in their two years of dominance will barely be getting organized when a Republican Congress begins to starve them of resources and MAGA legal groups sue to block their implementation.  The programs will have accomplished little by the time the next MAGA president eliminates them.  Democrats can enact civil rights, environmental, and consumer protection laws during their ascendancy; by the time those laws take effect and violations can be investigated and prosecuted, the Democratic president’s term will be about half-over.  Many violators’ appeals likely will not be exhausted before the next MAGA president pardons them.  Little will have been accomplished.  By contrast, the lives ruined or ended during MAGA administrations will not somehow be restored when that president leaves office. 

     Even if one is certain that Democrats can dominate national politics if (fill in the blank) “progressives stop taking extreme positions” or “the Establishment fights more vigorously”, it is obvious that neither group is going to change its stripes anytime soon.  Until we are collectively willing to choose a moderate but stable regime that negotiates progress among pro-democratic factions, and until we develop a viable process for resolving Tragedy of the Commons conflicts when Democrats are in power, the current boom-and-bust cycle will continue.  And while it does, all plans should focus on protecting political minorities and limiting the power of transitory majorities – even though Democrats will sometimes be in that majority. 

     @DavidASuper.bsky.social @DavidASuper1

What Roberts didn't say in the birthright citizenship case

Andrew Koppelman

Freedom of Expression After Trump v. Slaughter

Guest Blogger

Daniel Browning

The Supreme Court’s 2025 term included several notable First Amendment cases. For example, in Olivier v. City of Brandon, Mississippi, the Court made it easier for First Amendment plaintiffs challenging a law under which they were convicted to seek prospective relief. In Chiles v. Salazar, the Court held that a Colorado law banning “conversion therapy” did not survive strict scrutiny, at least as applied to “talk therapy.” And in National Republican Senatorial Committee v. Federal Election Commission, the Court struck down restrictions on a political party’s ability to spend on campaign activities in coordination with candidates for office. While these cases are significant in their own right, the most important free speech case of the Court’s 2025 term may not be a First Amendment case at all.

In Trump v. Slaughter, the Supreme Court dealt a final blow to Humphrey’s Executor, a long-standing precedent that insulated some agencies from presidential control by affirming Congress’s power to place removal protections on certain non-inferior officers. In so doing, the Court explicitly endorsed a strong version of the Unitary Executive Theory, under which the President must be permitted to fire at will most—but not necessarily all—non-inferior officers wielding executive power. The constitutional theory underlying the Unitary Executive Theory is grounded in a structural reading of the Vesting Clause and Take Care Clause of Article II. And its underlying political theory is animated by the thought that the power to fire non-inferior executive branch officers at will ensures officers are accountable to the President, who is, in turn, accountable to the people.

Slaughter’s most immediate and direct impact will be an expansion of presidential control over the administrative state. But underappreciated in the public discourse thus far is Slaughter’s likely downstream implications for freedom of expression. Today, as more and more discourse occurs on intermediated platforms, the government often aims to censor disfavored speech by “jawboning,” namely, by pressuring an intermediary who hosts or supports the speech to silence the speaker itself. When the government jawbones, it typically does so by promising to reward the intermediary with regulatory carrots, as in N.R.A. v. Vullo, or by threatening it with regulatory sticks.

The strong Unitary Executive Theory endorsed in Slaughter is likely to supercharge government jawboning of disfavored expression. Every instance of discretionary regulation creates an opportunity for regulators to reward political allies and punish political enemies. At-will removal creates a massive incentive for officers to marshal their regulatory discretion in a way that promotes the President’s agenda, that is, in a way that rewards the President’s allies and punishes her enemies. Where job tenure depends on fealty to the President, the officer, quite literally, puts her job on the line any time she regulates in a manner the president disfavors. Where speech increasingly is intermediated by massive conglomerates who are subject to discretionary government regulation on numerous fronts, we have a very big problem indeed.

After Slaughter, then, we should expect to see more regulators using their offices to target expression the President disfavors. But this is not the only problem. When it becomes a matter of common knowledge that regulators will use their discretion to further the President’s agenda, sophisticated firms will become more wary of hosting any expression the President opposes, lest they draw regulators’ ire. This sort of “voluntary” self-censorship is problematic not only because it restricts freedom of expression but also because it is practically impossible to challenge in court.

That is why it’s so baffling that Justice Gorsuch suggested in his Slaughter concurrence that a unitary executive would help limit government jawboning. After lamenting the broad powers Congress had granted to agencies, Gorsuch cited FCC Chair Brendan Carr’s recent jawboning of Jimmy Kimmel as an example of an agency making use of this unfettered power.

In light of the huge jawboning incentive created by a unitary executive, it’s difficult to even make sense of Justice Gorsuch’s suggestion. As I see it, the most plausible version of the Gorsuchian story is that government officials will jawbone less because they will be accountable to the President for their jawboning, who is in turn accountable to the people. Unfortunately, this story breaks down at both levels of accountability. The President is the one who most stands to benefit by officials jawboning the President’s opponents, so it’s unlikely that mere accountability to the President will do anything to tame jawboning by agency officials.

More plausible perhaps is the idea that the people themselves penalize the President at the ballot box for any government jawboning. While it’s true that public pressure on corporations and government officials can be an important source of countervailing power to resist government jawboning, the ballot box is a poor mechanism for holding the President accountable for jawboning. Even if we grant that people care enough about freedom of speech to factor jawboning into their vote, a vote for President in a two-party system bundles so many different policy preferences together that it’s highly unlikely jawboning is an issue that could ever be electorally decisive. Moreover, because officials of both political parties will have incentives to jawbone after Slaughter, voters may not even have a choice between a pro-jawboning and anti-jawboning candidate.

Even if the ballot box could be a real check, absent a statute that ensures jawboning transparency, such as the recently-proposed JAWBONE Act, voters would lack the information requisite to hold the President accountable for jawboning in the first place. As Justice Sotomayor observed in Vullo, when “a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.” Free speech scholars and civil society organizations have long called for greater transparency surrounding government communications with intermediaries, but Slaughter makes jawboning transparency more important now than ever. 

Daniel Browning is a PhD candidate in Politics at Princeton University and a recent graduate of Yale Law School. You can reach him at daniel.browning@yale.edu.

Celebrate this Fourth (or Fifth) of July by Putting Frederick Douglass in Your Syllabus

Guest Blogger

Alec Ewald

The best way to celebrate this Fourth of July is to open your draft syllabus and put Frederick Douglass in it. Particularly if it’s a draft con law syllabus, but Douglass goes with anything.  (I’m a political scientist, and wouldn’t presume to tell actual law professors what to do – but actually, I kind of would.  I think this will be valuable in your classrooms too, and at least one purpose-built casebook features Douglass.)

Plan to read, with your students, two things: his 1852 speech “What to the Slave is The Fourth of July,” and his 1860 speech “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”  I did these first as optional, dropped in alongside required readings.  But over a couple years, the discussions were too good, and too many students said later in course evals that these were among the most memorable and valuable things they’d read. So now it’s a day.

You should try it.  Let me make the case, and since it’s summer, I’ll do it in the most reader-friendly setup – a simple list – and start with the practical bottom line.

Wasserman is right

Andrew Koppelman

Howard Wasserman observes, on Prawfsblawg, that my recent National Affairs essay, “The First-person Appeal of Free Speech,” neglects to call out contemporary impulses toward censorship emanating from the right.  My piece begins by describing an episode where University of Illinois at Chicago Prof. Jason Kilborn was punished for merely referring to racist episodes on the left, and mentions some other demands for speech restrictions from the left.

Wasserman writes:  “Based on these examples, one would conclude that the sole (or at least paradigmatic) threat to free speech remains the lefty sophomore at Bard complaining about racism. Not universities firing faculty (at the behest of complaining students) who say bad things about Charlie Kirk posthumously. Not universities firing faculty and shutting down departments (whether at the behest of students or under threat from state and federal government) over teaching about race, gender, and the existence of trans people. Not universities suspending students (upon the federal government threat of losing funds) for engaging in political protest that objectors decry as antisemitic or who protests speeches by government officials pursuing bad policy. Not the federal government seeking to deport students for engaging in political protest that objectors decry as antisemitic or anti-American.”

He’s right about the political skew.  It wasn’t intended.  The National Affairs essay is an abridged version of “Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person,” forthcoming soon in the Journal of Free Speech Law.  I cut too much, without noticing the misleading impression this would create.  Here are some paragraphs that were deleted in the abridgement (footnotes omitted):

This pathology spans the political spectrum.  Recent statutes in fourteen Republican-dominated states prohibit any teaching in public schools – and, in ten of them, in state universities - of “divisive concepts,” among them that anyone “should feel discomfort, guilt, anguish, or any other form of psychological distress” on account of his or her race or sex.  There happen to be uncomfortable facts that implicate these identities – notably, that white people enslaved black people for centuries.  The consequence of this vague legislation, like that engendered by the Kilborn episode, is confusion and fear.  Teachers fearing for their jobs have been “avoiding lessons that discuss people who are not heterosexual, white, Christian, or American.”  Books dealing with race, gender, or sexual orientation have been purged from school libraries.  Textbooks have been rejected for containing forbidden material, and publishers have self-censored in response.

In state universities, faculty have cancelled courses, censored their syllabi, and avoided controversial topics.  These statutes typically forbid them to “teach, instruct, or train” anyone “to adopt or believe any divisive concepts,” and declare that this does not forbid impartial teaching.  But these formulations don’t work.  One faculty member explained:

I am a philosopher and it is my job to present as many arguments and counterarguments as I can and to teach my students how to evaluate these. I am fearful that positions that I defend in the line of duty—whether or not I actually hold them—can and will be used against me. How can I be a competent teacher in such a climate?

The normal imperatives of teaching now compete with a mandate that there are some ideas that students – even college students - are too frail to be exposed to.

Some of this should have been in the National Affairs version.  Stay tuned for the full article.

The First-person Appeal of Free Speech

Andrew Koppelman

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.