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.

The Power of the Purse I: Inter-Branch Transformations

David Super

     Charles I of England did not call Parliament into session because he desired its company or because he valued its counsel.  He called Parliament into session because he desperately needed money and because, under the Stuart Constitution, he had no other means of obtaining it.  This requirement eventually led to the ultimate check on his royal powers. 

     How remarkable it would be if the contemporary U.S. Constitution gave the President more financial autonomy than an English constitution resting on a far more absolutist, and overtly royalist, ideology.  This would be all the more remarkable in an era where Originalism is ascendant:  very few of the Framers were royalists, and even fewer allowed royalism to slip into their public communications.  President Trump has not yet reached the point where his powers clearly exceed those of Charles I, but the degree to which he has wrested the Power of the Purse away from Congress, and the scale of the changes within each branch of government in how fiscal prerogatives are exercised, are quite remarkable.  As someone once said in a somewhat different context, if we wish to understand true power in Washington, we must follow the money.  This post discusses how the President has wrested the Power of the Purse away from Congress.  Tomorrow I will analyze how changes within each branch have facilitated these changes. 

     Logically, the Power of the Purse has four components:  the power to say what revenues will be collected, the power to say what revenues will not be collected, the power to say what funds will be spent, and the power to say what funds will not be spent.  President Trump has significantly expanded presidential power in all four areas. 

     His most conspicuous revenue expansion has been his unilateral tariffs.  The Supreme Court struck down his sweeping “Liberation Day” tariffs on much of the world after they had been collected for ten months.  After defiantly blasting the Court, including his own appointees, President Trump then imposed another sweeping set of tariffs under a different legal rationale.  These, too, have been held unlawful in a lower court, but the President seems intent on imposing a new set of tariffs whenever he is prevented from imposing an old one. 

     Beyond this, the President has obtained ostensibly “voluntary” contributions from numerous entities outside of the federal government to fund his agenda.  Companies seeking regulatory concessions from the Administration, for example, have contributed heavily to building the President’s desired grand ballroom.  When state or local governments leverage regulatory approvals to obtain costly concessions from private businesses, the Supreme Court has called them “exactions” and struck them down as unconstitutional takings of private property without just compensation.  These are revenues.  And under the Miscellaneous Receipts Act, they must be – but apparently have not been – deposited in the Treasury and made subject to congressional appropriation.  The Act specifically prohibits depositing such funds in a bank. 

     President Trump also used the taxpayer-funded U.S. armed forces to replace Venezuela’s president with one who allows him to take a large share of the country’s oil revenues and place them in an account controlled only by the President.  Again, the Miscellaneous Receipts Act applies.

     Charles I had little desire to forego revenues, but President Trump inherited a government with a much stronger fisc – and seems quite indifferent to the fiscal position he leaves to his successor.  He therefore has sought to reduce taxes on his affluent allies.  Congressional Republicans shared this agenda and enacted the One Big Beautiful Bill Act last summer.  Although profoundly unwise, the Act raises no sweeping challenges to the constitutional order.  But President Trump has gone farther by preventing the Internal Revenue Service from enforcing revenue laws still on the books.  Part of has come through slashing IRS’s enforcement staff, leaving the agency hopelessly outmatched against wealthy individuals and corporations with complex tax situations.  This operates not very differently from the repeal of many Code provisions designed to curb upper-income tax abuse.  Although the Code prohibits the President and his entourage from influencing tax enforcement actions, news reports suggest that the Administration may be contemplating the grant of audit exemptions under the guise of settling litigation.   

     Quite apart from the public funds he has kept outside the Treasury, President Trump has repeatedly spent large sums from the Treasury contrary to law.  No apparent principle limits his willingness to disregard limitations on appropriations. 

     His cases against the federal government, which a federal judge flagged as potentially collusive, provide another means of accessing large amounts of Treasury dollars without going through Congress.  As I explained earlier, the “settlement agreement” negotiated between Trump-controlled plaintiffs’ lawyers and Trump-controlled defendants’ lawyers holds the distinction of disregarding parts of each of the first three articles of the Constitution (the Appropriations Clause, the Take Care Clause, and the Case and Controversy Requirement) as well as one of the amendments (section 4 of the Fourteenth).  The Justice Department’s press release says Acting Attorney General Todd Blanche has chosen to provide $1.776 billion to this fund for paying the President’s political allies without their proving any of the facts that Congress has required for claims against the federal government.  But nothing stops the President from directing Mr. Blanche to provide more funds without congressional appropriation or to expand the purposes for which they may be spent.

     Although the decisions to go to war with Iran and to take military action against Venezuela, Cuba, and others are commonly discussed in terms of international relations, they are also huge fiscal decisions.  By giving Congress exclusive authority to declare war, the Constitution ensures its comprehensive control over the nation’s finances.  President Trump’s disregard of this power further arrogates the Power of the Purse.  At some point, Congress will have little practical choice but to pay for the wars that were started without its authority.  The cost likely would be sufficient to reverse the devastating cuts to Medicaid and food assistance in last summer’s One Big Beautiful Bill Act, to establish a national child care subsidy program, or to make meaningful progress in shifting our energy infrastructure away from carbon. 

     The final component of President Trump’s claiming Congress’s Power of the Purse, impounding funds appropriated by Congress.  This may be best-known but least-understood of the Administration’s fiscal efforts.  OMB Director Russell Vought returned to office asserting presidential powers unheard of since the Supreme Court unanimously rejected President Nixon’s impoundments.  He followed that up by freezing funding for many domestic programs.  This global freeze was enjoin, withdrawn, and replaced by numerous more targeted, if no more justified or lawful, freezes on particular programs. 

     The picture at this writing is complex and confused.  A few programs did indeed suffer devastating unilateral, lawless impoundments, notably the U.S. Agency for International Development and the Minority Business Development Agency.  Others suffered narrower but still significant impoundments.  For still others, the Administration reported funds obligated but found a wide variety of gimmicks to keep the money from reaching its intended beneficiaries.  Some programs have seen their funds have been diverted to the Administration’s priorities.  For others, OMB has imposed practically unmeetable conditions that must be met before the funds are spent.  For still others, OMB has delayed spending without clearly stating that it intends the delay to be permanent.  And in a wide range of programs, the Administration has leveraged the threat of impoundments to coerce state and local governments and private grantees in ways not authorized by law. 

     Litigation’s results have been mixed.  The Supreme Court has sharply curtailed the ability to bring effective litigation but has not completely shut down potential recipients’ ability to sue.  The procedural obstacles it has placed in the way of litigants, and its resistance to allowing preliminary relief in funding cases, has left the Administration a relatively free hand for now.  But the Court has not clearly repudiated its prior decisions limiting presidents’ ability to arrogate spending powers to themselves.   

     The Power of the Purse has by no means fully passed from Congress to the President.  But the President’s actions suggest few obvious limits to his seizures of prerogatives the Constitution assigns to Congress.  It is difficult to identify a significant fiscal policy that the Administration has desired that it has been prevented from implementing.  So far, at least, Charles I would be most envious.

     @DavidASuper.bsky.social @DavidASuper1

Protecting Student Speech

Guest Blogger

Ronald C. Den Otter

My new book, Education in Democracy:The Importance of Free Speech in American Public Schools, is about the value of student speech and the dangers of censorship. Coupled with distrust of government, where school authorities cannot be trusted to police student speech competently or fairly, I make an autonomy-enhancing argument, contending that the exercise of free speech rights by students is constitutionally required in the name of respecting their autonomy, both as speakers (or writers) and listeners (or readers). I also explain why this practice over time is conducive to the development of the autonomous capacities that they will need as they approach adulthood and democratic citizenship. Ultimately, I defend the perhaps counterintuitive conclusion that constitutional protection for student speech is more imperative when students are young and impressionable. Not in spite of their age, but because of their age, there ought to be few limits regarding what they can say or write outside the classroom, when they are on campus or off campus using social media. 

A Ballroom Too Far: Republicans’ Procedural Blunders

David Super

     Over the past week, the Trump Administration celebrated the completion of its trifecta of retribution against dissident Republicans, defeating Rep. Tom Massey (R-Ky.) in his primary after previously doing the same to Sen. Bill Cassidy (R-La.) and a group of Indiana state senators opposed to mid-decade partisan redistricting.  Yet rather than having grounds to celebrate, Republicans ended the week in disarray.  Much of this is the toll of accumulated public discontent over the economy, the war in Iran, a violent anti-immigrant campaign, and a host of other self-aggrandizing actions seeming disconnected from the nation’s genuine problems.  Congressional procedure, however, played its role.  This post explains how Republicans’ “strong” moves have landed them in such a mess.   

     The epidemic of violence by Immigration and Customs Enforcement (ICE), Customs and Boarder Protection (CBP), and cooperating agencies led Democrats to demand restrictions on those agencies’ actions in the Homeland Security Appropriations bill.  The White House rejected even fairly basic limits, shutting down negotiations between the two parties’ appropriators.  This led to a partial government shutdown when Democrats effectively filibustered that bill.  Democrats repeatedly offered, and forced Senate Republicans to vote down, bills appropriating funds to the rest of the Department of Homeland Security (DHS), apart from ICE and CBP. 

     The One Big Beautiful Bill Act last summer fully funded ICE for this fiscal year and beyond.  CBP was a bit less flush but also in no immediate distress.  Essential workers in other DHS agencies, however, were getting increasingly restless as they were not getting paid.  The Administration illegally paid those workers once, defying the Constitution’s Appropriations Clause, but got cold feet about doing so again. 

     With polling showing that the electorate was modestly more inclined to blame Republicans for the shutdown, Senate Republicans tired of having to vote down funding for the Coast Guard, the Transportation Security Administration, and other popular agencies.  They agreed to the Democrats’ proposal to fund the rest of DHS without ICE and CBP.  They justified this capitulation by announcing that they would fund those two agencies through a reconciliation bill that Democrats could not filibuster.  House Democrats had no comparable means of forcing awkward votes so the House Republicans were feeling less pressure.  House immigration hawks initially condemned the Senate Republicans’ capitulation but ultimately passed the Senate’s all-but-ICE/CBP appropriations bill. 

     Because they are exempt from filibusters, reconciliation bills often become “Christmas trees”, with everyone in the majority party trying to attach their own contentious items.  This bill was no exception:  the White House apparently insisted on adding $1 billion for the President’s grand ceremonial ballroom.  The President had previously promised that no public funds would go into his ballroom – and secured large donations from companies seeking favors from the Administration – Republicans argued that these funds would go entirely for security improvements adjacent to the ballroom.  Given the ballroom’s unpopularity, this raised the political cost of the bill considerably.  And the ballroom’s inclusion turned out to be a procedural disaster. 

     Because reconciliation bills are extraordinary in that they may pass on a simple majority vote, the procedures for their consideration are more formal than usual.  Before bringing a reconciliation bill to the floor, the majority must first pass a “budget resolution” through both chambers that assigns budgetary limits to each committee intended to contribute material to the final bill.  Reconciliation procedures also allow the minority to force votes that the majority could dodge on other legislation. 

     The Republicans’ budget resolution gave budgets only to the Homeland Security and Judiciary Committees, which divide jurisdiction over immigration.  They likely could have given ICE and CBP all the money they desired through the Homeland Security Committee alone.  The Judiciary Committee, however, has jurisdiction over the Secret Service, and to keep up the pretense that the ballroom funding was only for security improvements, Republicans decided to channel it through the Secret Service.  To give Judiciary Committee members political cover, Republicans had that committee create some of the ICE/CBP funds as well. 

     This all blew apart when the bill reached the floor.  First, Democrats persuaded the Parliamentarian that the White House complex well within the jurisdiction of the Environment and Public Works or Energy and Natural Resources Committees, neither of which was given any money to spend in the budget resolution.  Senate rules attribute spending to the committee with jurisdiction even if it springs from legislation reported out by another committee.  Therefore, the ballroom funding was subject to a point of order for increasing those other committees’ contribution to the deficit without permission in the budget resolution.  If Republicans did not strip the ballroom from the bill themselves, Democrats could raise a point of order that would require sixty votes for Republicans to waive. 

     The problems did not end there.  Although the White House complex is not within the Judiciary Committee’s jurisdiction, the Justice Department is.  Amendments to reconciliation bills that reduce the deficit within the jurisdiction of one of the participating committees are generally in order.  Therefore, by trying to fund the ballroom, Senate Republicans likely allowed Democrats to offer an amendment to the bill that would explicitly forbid the President’s already unlawful $1.776 billion “weaponization” compensation fund.  With half of the Republican caucus reportedly up in arms over the morality and wisdom of that fund, such an amendment would easily pass. 

     To be sure, House Republicans could add back the ballroom and delete any restrictions on the “weaponization” fund.  But with Rep. Massey and all Democrats surely opposed, that could mean that every other Republican, would have to vote for this politically toxic bill – including those facing difficult re-election battles.  By tradition, Democrats can force one floor vote, on a motion to recommit the bill to committee.  Democrats would surely force Republicans to vote on removing the ballroom, barring the “weaponization fund”, or both (by reverting to the Senate version of the bill). 

     And even if the House changed the bill to the President’s liking, that would probably force the convening of a House-Senate conference committee.  At a minimum, this would entail further delay.  And the prospects on the Senate floor of a conference bill that either funded the ballroom or allowed the “weaponization fund” would be dubious at best:  in addition to Sen. Lisa Murkowski (R-AK), who likely opposes it on substance (and who years ago showed she could survive a primary challenge), leadership would have to worry about Sen. Susan Collins (D-Me.), who is in a difficult re-election battle, as well as Sen. Cassidy, whom the President just defeated for re-nomination, Sen. John Cornyn (R-Tex.), whom the President is trying to defeat next week, and two senators forced into retirement with threats of primary challenges (Sens. Thom Tillis of North Carolina and Mitch McConnell of Kentucky).  Overzealous efforts to enforce party discipline can quickly backfire. 

     The Senate Republicans’ impasse over the ICE/CBP reconciliation bill also imperils other parts of the President’s agenda.  Democrats are unlikely to support full funding for the war in Iran that the President launched without consulting Congress – at least not unless it imposes new limits on presidential war-making powers.  Republicans had increasingly been discussing yet another reconciliation bill to fund the war and avoid a filibuster.  These discussions have stalled as Republicans may not have fifty votes for such a bill.  But if they cannot pass the comparatively easy ICE/CBP reconciliation bill, the odds of twisting enough arms to move a much more contentious war reconciliation bill seem even more remote.  Again, the President’s choice to end the careers of four Republican senators for perceived disloyalty considerably weakens his leverage. 

     This also further undermines the President’s demands that Senate Republicans abolish the filibuster to enact the voter-suppressing “SAVE Act”.  Senate Majority Leader John Thune had reported that he lacked the votes to do so even before the latest meltdowns.  Now that the President has personally alienated more senators, and forced the Republican Senate to become accustomed to resisting his agenda, the SAVE Act’s prospects have dimmed even further. 

     House rules give the Speaker near-absolute procedural control of what comes to the floor and how.  One of the few powers the minority does have, however, is the ability to advance a resolution disapproving of a President’s military engagement.  House Democrats sought to do so this past week, with Republican leadership expecting to defeat the resolution on a party lines’ vote.  They had to adjourn hurriedly, however, when they discovered that they did not have sufficient Republican votes to prevail.  This vote now awaits them upon their return.  The President can and surely would veto any anti-war resolution that actually passes, but the prospect of House Republicans in difficult districts having to choose between the President and their anti-war constituents likely is haunting many Members’ recesses.  This could be why the President suddenly seems in a hurry to announce a deal despite the Iranians apparently having capitulated on nothing. 

     Progressives commonly demand that Democrats enforce tighter party discipline and eliminate the filibuster.  It is instructive to see how fierce party discipline and the filibuster have been pummeling Republicans this year. 

     @DavidASuper1 @DavidASuper.bsky.social

R.I.P. Ran Hirschl

Mark Graber

Ran Hirschl was a pathbreaking scholar, an even better human being, and an even better friend.  Words cannot capture his impact on scholarship and on the lives of the numerous scholars he touched.  The excerpts from a letter on his behalf are a weak attempt to do justice to him and his legacy.  They remain in the present tense because through his works, example, and encouragement, Ran will always be with us.

Hirschl is the leading thinker on comparative constitutionalism in the world.   No political scientist in the public law field, no political scientist in the comparative government field, no law professor, and no member of any other discipline has come close to his achievements.  Each of Professor Hirschl’s books is acknowledged as path-breaking.  No one knows more about constitutional developments in different parts of the world.  No one has done more to inspire the contemporary renaissance in comparative constitutionalism.  No one has played a greater leadership role in this comparative constitutionalism revival.  You could divide Hirschl’s resume in half and probably thirds and each piece would have a powerful case for a lifetime achievement award in numerous disciplines and in numerous fields within those disciplines.

Hirschl has a stunning range of expertise, a range that dwarfs any other scholar that I know of in political science or law.  One finds in his publications a sophisticated understanding of political theory, all aspects of public law, and comparative politics.  He has clearly mastered the literature on democratic theory, on constitutional interpretation, on law and society, and on judicial politics.  He seems to have mastered the general literature on comparative constitutional law, and the specific constitutional politics of almost every country with constitutional politics.  His chapter on case studies in Comparative Matters is an extraordinary methodological piece, one I regular insist my students examine.   I have always been particularly impressed with Professor Hirschl’s capacity to both know the details of what almost every constitutional court in the world is doing and to organize those details into theoretically rich arguments.  Maybe somewhere in an obscure province in India, a constitutional development exists that Hirschl does not know about.  But neither I nor any of the numerous reviewers of his works have been able to identify this omission.  I am confident Vulcan of Star Trek fame is fiction, because Professor Hirschl has never discussed the Constitution of Vulcan.

This erudition extends far beyond law and political science.  Consider the first chapter of City, State: The Constitutionalism and the Megacity.  The chapter begins with an extensive discussion of what almost every social science field has said about cities for the past fifty years.  Hirschl seems to have a fluency in subjects ranging from sociology to architecture that would do experts in those field proud.  Perhaps I need to get out more, but I cannot think of a scholar in any field whose expertise ranges over so much political science, so much law and so much scholarship as Professor Hirschl.  The other books are similar.  Hirschl does not simply master law and political science.  He masters whatever disciplines are necessary to cast light on his subject matters.

Professor Hirschl’s forthcoming book, Constitutionalism 2050 points out that the traditional nation-state no longer serves to manage central problems.  The problems regimes face, from climate change to globalization to pandemics are now international.  Local national governance, he observes, weakens human capacity to respond to these problems.  Constitutionalism must go global for the human race to survive.  Putting aside jealously, I had two thoughts when he was presented.  Sandy Levinson accurately describes this work as the most important book on constitutionalism published in the twenty-first century.  As always the erudition is remarkable; the thesis strikingly original, and the importance speaks for itself.

Professor Hirschl is a fellow of the Royal Society of Canada, which is the equivalent of being a member of the American Academic for the Arts and Sciences in the United States (both are academic halls of fame).  He has held distinguished chairs at the University of Toronto, the University of Texas, and the Max Planck Institute in Germany, as well as holding distinguished visitor chairs at the National University of Singapore, New York University and Harvard Law School.  He has won national and global awards for scholarship and delivered addresses, often named, at almost every major university in the world.  He is a former Co-President of the International Society of Public Law and one of the founders of that organization.  He has published many edited collections and nearly one-hundred essays, many of which have been republished and translated elsewhere.  The evidence clearly indicates, I should add, that none of his works seem to have been written by Christopher Marlowe.

 Professor Hirschl excels at all facets of the academy.  He was an award-winning teacher at Toronto.  When I wrote his recommendation for the Canada Research Chair, the University of Toronto presented me with as strong a set of teaching evaluations, both for graduate students and undergraduates, as I recall seeing.  He has helped mentor the younger generation of comparativists.  You see Professor Hirschl’s name in manuscripts by junior scholars warmly thanking him for the time and energy he gave to reviewing junior manuscripts.  He has been a leader in comparative constitutionalism, not just as a scholar, but as a founder and leader of the International Society of Public Law.  Thanks in significant part to his efforts, ICON-S is probably the most important site in the world for comparative constitutionalism.  Finally, on a personal note he is a warm and trusted friend to many of us in the academy.

Professor Hirschl has a global reputation for excellence and as fine a global reputation for decency.  He is an outstanding teacher, mentor, colleague, and friend.

There will be a program at APSA honored his memory and achievements.  Others are in the works.  All we can do for the present is miss terribly this amazing scholar, human being and friend.