Emerging Outlines of an Executive Power Grab

David Super

      One month into the new administration, the typhoon of news stories about radical, often unprecedented, executive actions is dizzying.  Daily, sometimes even hourly, we hear of new, aggressive actions posing fundamental challenges to our constitutional order each rivaling President Truman’s seizure of the steel industry or President Nixon’s sweeping impoundments of appropriated funds. 

     Everyone can see that something dramatic is happening, but for many a clear picture of the new Administration’s plans may be elusive.  This is an attempt to synthesize the Administration’s actions into six principles.  The Administration will no doubt continue to elaborate on each of these, but the basic structure guiding this attempted revolution now seems fairly clear.

     These actions seek not just radical changes in policy but also a fundamental change in the constitutional order.  The President is triggering a constitutional moment in the purest Ackermanian tradition more clearly than at any time since the dawn of the Civil Rights Era. 

     The key tenet of the proposed amendment to our constitutional order is a presidential super-power to override and disregard any law governing the executive branch’s actions.  This goal seems clear because the Administration keeps doing things in clear defiance of statutes that it could fairly easily do within existing law.  For example, it is engaged in massive impoundments of appropriated funds in violation of the Impoundment Control Act of 1974, yet because Republicans control both houses of Congress and the Act forbids filibusters the President could easily win congressional approval for lawful rescission requests. 

     Similarly, the Administration fired a Democratic member of the National Labor Relations Board when it has vacancies to which it could easily appoint loyalists and secure a majority on the Board.  And it fired eighteen inspectors general – several of whom President Trump appointed in his first term – without the statutory thirty days’ notice even though few if any could have caused it significant problems during the required terminal period.  Perhaps most dramatically, it has declared inoperative various regulations that the Administrative Procedure Act, other statutes, and numerous Supreme Court decisions say may only be repealed after giving public notice and considering comments received.    

     The core idea appears to be that statutes may constrain executive officials only to the degree that they are not countermanded by the President.  In defending challenges to its across-the-board funding freezes, it has seemed to suggest that the Office of Management and Budget (OMB) memo that publicly launched the freeze could be enjoined – indeed, the Administration formally withdrew that memo – but that the President’s executive orders stood on a higher level, capable of overriding the legal bases of those injunctions.  In other litigation, too, its refrain has been that the courts enjoined agencies’ exercise of some powers but the agencies can do essentially the same thing using other powers. 

     In this vision, statutes directly constraining presidential power, such as the Impoundment Control Act and limits on the appointment and firing of members of statutorily independent agencies, would be wholly unconstitutional while others, such as the Administrative Procedure Act and Civil Service laws, might continue to apply to mundane affairs but may be swept away whenever they do not suit the President.  Although the Administration’s current focus is exercising this asserted super-power on fiscal, regulatory, and personnel matters, one could imagine it trying to extend the super-power’s reach into the civil rights and civil liberties realms.

2.  Eliminate neutral arbiters of fact.

     A fundamental vulnerability of a two-party system is its dependence on neutral arbiters:  if everyone is a member of, and primarily loyal to, one of two political coalitions, nobody can credibly adjudicate facts and enforce procedural rules.  Once that happens, whichever coalition is in power takes over adjudication and entrenches itself.  Because our Constitution was written before the advent of a rigid two-party system, we have a somewhat accidental patchwork of neutral arbiters empowered by statute, by custom, or by personal integrity. 

     The Administration has been systematically eliminating these arbiters who might check its narrative.  The vilification of state and local election officials, many of them Republicans, after the 2020 election was part of this.  Insinuations that all federal civil servants are untrustworthy, followed up with mass purges minimally constrained by need or subject-matter area, removes them as neutral arbiters.  To make doubly certain, the Administration is reclassifying many of those that remain as at-will employees.  Attacks on the media, on the courts, on scientific expertise, on universities, and even on former Trump appointees further depletes the ranks of who can adjudicate facts in ways many Americans will accept.  A country that cannot adjudicate facts cannot function any more than someone who cannot perceive on-coming traffic can drive. 

3.  Impose loyalty tests and instill fear. 

     Much of the absurdity of this Administration is in fact perfectly calculated to entrench its power.  It demands that media organizations accept its renaming of the Gulf of Mexico to humiliate and divide them.  It requires that candidates for appointments affirm that Mr. Trump won the 2020 election to ensure they will place loyalty over integrity.  It nominated manifestly unqualified people to cabinet positions – an opponent of life-saving vaccines to be health secretary, an open sympathizer with dictatorial adversaries to lead the intelligence community – partly as political paybacks but also to get Republican senators in the habit of setting aside their better judgment for partisan loyalty. 

     Defying the Fourteenth Amendment’s grant of birth-right citizenship is a bow toward the most nativist element of its coalition.  But it also imposes a loyalty test on conservative lawyers, inviting them to prove their devotion by attacking the thoroughly Originalist opinion in Wong Kim Ark v. U.S.  (That opinion was hardly the work of a liberal Court:  five justices in the Wong Kim Ark majority had voted two years earlier to validate racial segregation in Plessy v. Ferguson.)

     The Administration’s mass firings of career civil servants set the table for demands to execute funding freezes contrary to law and court orders.  By firing career anti-corruption prosecutors, including some with impeccable Federalist Society credentials, it has sent an unmistakable signal to lawyers defending its increasingly indefensible actions in court. 

     And by attacking major universities’ financial stability through radical reductions in indirect cost reimbursement for research grants, it is implicitly demanding that they choose between their financial health and their academic mission to seek truth.  (We will no doubt soon learn of waivers granted to “loyal” universities.)

     This is a sharp contrast to the first Trump Administration.  That Administration sought to reassure most of the country by confining the worst of its attacks to vulnerable groups such as immigrants, Muslims, and low-income people.  Now, however, the Administration is targeting apolitical civil servants, local non-profits, and even Lutherans.  And this, of course, is even before we see what Kash Patel will do as a confirmed FBI director.  So far, very little that the most aggressive members of President Trump’s circle said they would do has turned out to be bluff or bluster; assuming that Mr. Patel does not mean what he has said would be most foolish. 

4.  Feign legality while establishing facts on the ground.

     Last week I wrote papers cataloguing some of the more overt illegalities of the Administration’s fiscal and regulatory actions and its personnel moves.  Both were rapidly superseded by additional unlawful actions.  On numerous key issues, the Administration has been failing terribly in court yet succeeding splendidly on the ground. 

     For example, federal district courts in the District of Columbia and Rhode Island promptly issued temporary restraining orders (TROs) against the Administration’s funding freezes.  The Rhode Island court issued a subsequent order harshly criticizing the Administration for numerous violations of its order and seeking to remove any ambiguities about the Administration’s responsibilities.  And yet massive, sweeping funding freezes continue.  The same is true of the specific freeze on foreign aid programs. 

     Although neither of the general funding freeze TROs is confined to actions justified on any particular power, the Administration doggedly insists that both are.  And because the Administration’s vision of a presidential super-power means that it can always dream up some other justification for the same actions, any injunction regarded as addressing one particular power will be ineffectual.  Given the sheer number of programs being halted, judges are quite naturally reluctant to say that under no circumstances may funding be cut off.  Yet until they do, the Administration clearly will continue to do as it pleases. 

     The results are dire and increasingly irreversible.  Non-profits that operate on a shoestring in the best of times have had to furlough their staff.  Many are on the brink of closing permanently because they cannot pay their bills. 

     Similarly, the environmental programs that the Inflation Reduction Act launched have been carried primarily by small businesses, which ought to be hailed as a great success story.  They, too, often operate on slender margins and may not survive the termination of their contracts – even when those contracts grant the Administration no cancellation authority absent breach and the businesses could eventually win breach of contract claims against the Government. 

     Even if the Administration never formally declares defiance of a particular court order, its quiet non-compliance has rendered many of them irrelevant.  A reporter told me that the Administration blamed its continuing freeze on one program after the TROs as the result of “abusive compliance” by career civil servants.  Even if that is true, the Administration’s hurried process, its failure to send clear instructions, and the trauma that mass terminations inevitably cause could well lead these workers to believe that even following the law will not shield them from the Administration’s wrath.

5.  Force extreme decisions.

     The Administration is foreclosing any middle ground, both politically and legally.  Harsh attacks even on Speaker Mike Johnson – later dropped when no longer convenient – make clear that only Members of Congress’s absolute obedience is acceptable.  Although Senator McConnell only formally announced his retirement today, it has been obvious since he first voted against some of the more outrageous cabinet nominees.  Administration allies made clear that Senator Bill Cassidy, a physician, would end his career if he followed his judgment to vote against Robert Kennedy’s nomination. 

     Similarly the Administration is leaving the Supreme Court no middle ground.  Perhaps the justices can find some way to finesse the first or the second case they get of blatant lawlessness.  But that will do them little good as a dozen or more cases of similarly illegal conduct will follow quickly on its heals.  Sooner rather than later, the Court will have to decide if the Administration’s imagined presidential super-power actually exists.  And because the claims for this power are so extravagant, the Court’s acceptance of it will considerably reduce both its own relevance and that of Congress.  Upholding that super-power also will raise serious questions about the justices’ commitment to Originalism (to say nothing of the Major Questions Doctrine). 

6.  Make change irreversible. 

     Much of what the Administration is doing is neither lawful nor popular.  As the consequences of its reckless gutting of the federal workforce become more apparent, its popularity will erode even more.  Yet by itself, this may not matter a great deal.  President Trump was heatedly criticized for saying that voting would not matter in the future once he “fixed” the country.  We are now seeing what he meant. 

     Whether the civil servants he is purging are replaced with partisan hacks, with private contractors, or with no one at all, the capacity to operate the federal government effectively will be largely wrecked.  Quite apart from sheer numbers, the most talented people will have left, voluntarily or otherwise, and will be disinclined to come back to positions where they may be deliberately “traumatized” in another few years.  Rebuilding the Civil Service will require raising salaries substantially to include de facto risk premiums, costing taxpayers considerable money.     

     Administering programs through the private sector will be increasingly difficult as well.  Many grassroots non-profits will be gone completely.  The ones that survive will be disproportionately those that previously eschewed federal funding as too risky – and will now feel confirmed in those views. 

     More broadly, with neutral adjudicators of fact and enforcers of procedure largely eliminated or delegitimized, a future progressive, moderate, or traditional conservative administration will have little effective way to dissuade voters of even the most obvious lies, such as the claim that millions of people over 100 are receiving Social Security. 

     All this being said, we are not helpless.  Although we are well past the point where great damage to our system of government and civil society is inevitable, we are not at the point where our constitution is necessarily lost.  As Ackerman makes clear, several additional steps are necessary before our constitution – our collective sense of how power may legitimately be exercised – has changed.  His model is as clear about how attempted constitutional change can fail as it is about how such change may be achieved.  We have passed the signaling stage and are getting an increasingly clear proposal from the President about how he would like to shift the constitutional order.  Ackerman tells us that this will lead to competing mobilizations for and against this change, attempts to ratify it through successive electoral victories, and ultimately consolidation into our constitutional norms. 

     Thus, those opposing this presidential super-power must make concerted efforts to persuade the electorate of its unsuitability, must mobilize opposition communicated with Republican Members of Congress, and must prevent ratification of these changes in the coming elections.  That clearly will require building bridges both within the often-fractious progressive community and to moderates and conservatives with whom we have fundamental disagreements on vitally important issues.  In normal times, we may disagree sharply, but now we need to make common cause with anyone who shares a commitment to preserving our constitutional checks and balances. 

     @DavidASuper1  @DavidASuper.bksy.social