Pluralist Modalities in Originalist Clothing: Thoughts on Arguments in Trump v. Barbara

Guest Blogger

James Fox 

Like most observers I listened to the oral arguments in Trump v. Barbara for signals about the possible vote alignment in the challenge to President Trump’s Executive Order declaring that birthright citizenship under the fourteenth amendment no longer applies to children whose parents are in the United States without authorization or long-term domicile. I left the argument thinking about how this quintessential originalist dispute in fact revealed the justices shifting around in a sea of rhetorical modalities, and how the scant efforts to attend to all the modalities inhibits argument and analysis.

As the case has been presented in the briefing, in the lower courts, and in much of the legal social mediasphere, it is almost entirely an originalism debate. The opponents of Trump’s Executive Order have a lot of text and ratifying history on their side, the leading precedent is largely originalist in character, the main supporters of the EO have developed long-winded originalist arguments on the fly and themselves are getting strong pushback for that effort by fellow conservative originalists as well as liberal scholars.

The oral arguments reflected a lot of this, of course. But I also thought they revealed important ways in which all the modalities (here thinking primarily of Philip Bobbitt’s modalities but not limited to them) were lurking in the background. Here are some thoughts on that reaction to the argument, with a focus mainly on the justices’ questions.

Presidential Appropriations

David Super

      President Trump has rejected any constraints on the violent, lawless, reckless behavior of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents even after they killed several U.S. citizens.  He also has repeatedly rejected a bipartisan Senate compromise that would have funded all of the Department of Homeland Security (DHS) apart from those two agencies.  This compromise would not have interfered with the continued operations of ICE and, at least in the near term, of CBP:  both agencies received a huge influx of funds under the One Big Beautiful Bill Act (OBBBA) President Trump pushed through Congress last summer.

     Without a DHS appropriation, most DHS employees, including those at the Transportation Security Administration (TSA), the Federal Emergency Management Agency (FEMA), and the Coast Guard, have been working without pay.  TSA officers have been resigning and calling in sick, leading to huge lines at airports and numerous missed flights.  Other DHS employees have been seething in relative obscurity.  This post analyzes the legality, or lack thereof, of the actions President Trump has taken in response to this impasse. 

     When the previous temporary appropriation for DHS became unavailable on February 14, President Trump kept ICE agents working and continued to pay them with funds from section 100052 of OBBBA.  This section provides $29.85 billion to ICE for an extensive list of purposes including “Hiring and Training” and “Performance, Retention and Signing Bonuses”.  Although not a clean match with paying the regular salaries of on-going ICE employees, most people likely would regard that as sufficient authority for these payments.  Section 1000052 likely provided sufficient funds to support ICE for the remainder of this fiscal year.

     President Trump also kept CBP agents working and paid them under section 100051 of OBBBA.  Section 1000051 provides DHS $2.055 billion for several purposes including the “[h]iring and training of additional U.S. Customs and Border Protection agents, and the necessary support staff, to carry out immigration enforcement activities.”  President Biden’s final budget proposal estimated that CBP would spend about $16 billion in a year so, even combined with 4.5 months of funding under continuing resolutions, section 1000051 funds alone likely would not suffice to fund CBP through the end of the fiscal year in September. 

     Finally, President Trump required many other DHS employees, including TSA officers and much of the Coast Guard, to continue working during the partial shutdown that began February 14.  This likely was appropriate under section 1342 of the Anti-Deficiency Act, which makes an exception to its general prohibition on the federal government accepting unpaid work where necessary to address “emergencies involving the safety of human life or the protection of property.”  He did not pay them, however, because section 1341 of the Act, which prohibits spending federal funds without a statutory appropriation, contains no “emergency” exception. 

     President Trump was unable to continue paying these non-ICE, non-CBP employees under sections 1000051 or 1000052 because the “Purpose Act” states “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”  

     The Government Accountability Office’s (GAO’s) Red Book of Appropriations Law, on which the Supreme Court has relied, characterizes the “Purpose Act”:  as “Simple, concise, and direct, Congress originally enacted this statute in 1809 and it is one of the cornerstones of congressional control over the federal purse.”  It quotes a 19^th Century Comptroller of the Treasury:  “It is difficult to see how a legislative prohibition could be expressed in stronger terms. The law is plain, and any disbursing officer disregards it at his peril.”  That “peril” is the Anti-Deficiency Act’s criminal penalties.  GAO notes that “[i]f a proposed use of funds is inconsistent with the statutory language, the expenditure is improper, even if it would result in substantial savings or other benefits to the government” and “transfer between appropriations is prohibited without specific statutory authority, even where reimbursement is contemplated.”

     As public irritation over long airport security lines mounted and Democrats continued to refuse to appropriate more no-strings money for ICE and CBP, President Trump repeatedly instructed congressional Republicans to reject Democratic bills that would have funded the rest of DHS and let ICE and CBP continue to spend OBBBA funds.  When Senate Republicans disobeyed and agreed to legislation that would do essentially that, House Speaker Mike Johnson prevented the Senate bill from coming up for a vote.  President Trump then ordered DHS to pay its workers notwithstanding the lack of an appropriation. 

     On March 27, President Trump issued a memorandum to the Office of Management and Budget (OMB) and DHS ordering them to pay TSA employees.  He stated that “[a]s President of the United States, I have determined that these circumstances constitute an emergency situation compromising the Nation’s security” but cited no statute making such a determination legally relevant.  In addition, he did not specify what appropriation, if any, should be drawn down to provide these payments.  Instead, he simply instructed OMB and DHS to make these payments “consistent with applicable law, including 31 U.S.C. 1301(a)”, the “Purpose Act”.  No available appropriation has a statutory purpose that would include paying TSA officers.  A week later he issued second a memorandum to OMB and DHS directing that “each and every employee of DHS” be paid.  This memorandum again contained an emergency declaration and a citation to the “Purpose Act” and again failed to specify any source of funds for the payments he was ordering. 

     With the Administration not advancing a theory of why this action might be legal, outside analysts have discussed section 90007 of OBBBA.  This section states:

In addition to amounts otherwise available, there are appropriated to the Secretary of Homeland Security for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, $10,000,000,000, to remain available until September 30, 2029, for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.

These funds are clearly available for CBP agents at the nation’s perimeter.  One could plausibly argue that CBP officers at international airports are indirectly responsible for safeguarding our borders in that anyone to whom they refuse entry will quickly be sent back across those borders.  The Administration contends that ICE and CBP enforcement actions in the country’s interior somehow are part of border security; that position flies in the face of the ordinary usage of language and a long history of distinguishing between border and interior enforcement actions. 

     Even if one accepts the Administration’s unilateral reconceptualization of border enforcement, however, that at most helps fund CBP and the Coast Guard.  As the President’s own memo notes, TSA works only in “our domestic travel system”, not “to safeguard the borders of the United States.” 

     The President directs OMB and DHS “to use funds that have a reasonable and logical nexus to TSA operations” for TSA pay and “to use funds that have a reasonable and logical nexus to the functions of DHS” to pay DHS employees.  This appears to reference the first of the three steps GAO applies to determine the propriety of an expenditure.  This step allows spending an appropriation only on activities necessary to accomplishing the statutory purpose of the appropriation.  That analysis is impossible, of course, without first establishing the appropriation’s purpose.  And for this, GAO cautions “The actual language of the appropriation act is always of paramount importance in determining the purpose of an appropriation.”  (The Supreme Court’s Textualists have nothing on the GAO.)

     The claim that paying DHS employees has “a reasonable and logical nexus” begs the question:  “to what?”  If the Administration had an appropriation whose purpose met this test, surely it would have disclosed it in the presidential memoranda or in response to questions thereafter.  Indeed, if the Administration thought paying DHS employees was permissible under existing law, surely it would have done so in February. 

     Moreover, even if the Administration could satisfy the first part of GAO’s three-part test, it likely would fail the third, which prohibits spending general appropriations on an activity Congress has addressed with a more specific appropriation.  “It is a well-settled rule that even where an expenditure may be reasonably related to a general appropriation, it may not be paid out of that appropriation where the expenditure falls specifically within the scope of another appropriation.”  Congress has addressed compensation for DHS employees in several specific appropriations, all of which barred spending funds after February 14.  The Administration could not lawfully evade that limitation even if it had a broader appropriation whose language plausibly permitted the expenditure. 

     This is not a case of necessity.  President Trump does not care for the terms of the deal Congress is offering.  He can certainly hold out in the hopes of getting something better.  But disregarding the Constitution to avoid bargaining with a coordinate branch of government is no more legitimate for him than it would have been for any of his many predecessors who disliked terms that Congress was offering.   

     President Trump is developing a habit of spending funds in defiance of the Appropriations Clause, the Anti-Deficiency Act, the Purpose Act, and other statutes.  His action to pay servicemembers during last fall’s partial government shutdown was wholly lawless.  His practice of keeping donations from affluent benefactors, and the proceeds from sales of Venezuelan oil he has seized, in accounts he controls outside the U.S. Treasury violates the Miscellaneous Receipts Act.  That Act requires funds to be promptly deposited in the Treasury – where they become subject to the Appropriations Clause. 

     This is important.  Although it may strike some as rather technical when compared with usurping Congress’s power to declare wars in a disastrous war of choice against Iran, Congress’s Power of the Purse is foundational to most other checks on presidential power.  The Court’s unwillingness to enforce various constitutional limitations on presidential power has been defended by arguing that Congress may defund actions of which it disapproves.  If the President may appropriate funds for whatever actions he desires without regard to statutory limits, that fallback constraint no longer exists.  Should Congress ever muster the will to cut off funding for President Trump’s war against Iran or other foreign adventures (Greenland?  Cuba?), we may expect that the President will simply declare a national emergency and order that funds continue to flow based on some wild “nexus” theory, perhaps again not even bothering to state which unrelated appropriation he chose to pilfer. 

     @DavidASuper.bsky.social @DavidASuper1

Who’s Afraid of a Constitutional Convention?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Nikolas Bowie

Two years ago, a ballot question asked Rhode Island voters whether there should be a convention to revise the state’s constitution. The Rhode Islanders answered no. Overwhelmingly. With 62 percent of voters opposing the proposal, an observer across the border might assume the Ocean State’s residents love the way their government is structured. It looks a lot like the federal system, with a bicameral legislature chosen by first-past-the-post elections, a separately elected chief executive, and an appointed judiciary that sits for life.

Rhode Island isn’t unique in its support of the status quo. It’s one of fourteen states whose constitution requires voters to consider, every few decades or so, whether their state constitution needs a reset. From Alaska to New York, voters in these states consistently reject the request. Year after year, when Americans are given the most frictionless option possible for reimagining how government in the United States might be restructured, they choose to keep things as they are.

The irony, of course, is that the Federal Constitution looks frailer than ever. The past two decades have crammed newsfeeds with the downsides of bicameralism, first-preference-plurality elections, presidentialism, and judicial supremacy. As Stephen Skowronek observes in The Adaptability Paradox, the institutional arrangements that sat at the vanguard of 18th-century political science have increasingly failed to serve as an agreed-upon anchor for our current, more inclusive society. He notes that the Federal Constitution has proven remarkably adaptable at responding to crises, including those sparked by partisanship and demands for white male suffrage in the 1820s; abolition and demands for black male suffrage in the 1860s; the administrative state and demands for women suffrage in the 1910s; and the attempted fulfillment of universal inclusion in the 1960s. But he writes that this adaptability comes with a paradox: Each time the Constitution is renovated to accommodate a more inclusive polity, it loses its ability to “make a burgeoning democracy work aligned with a shared understanding of its formal arrangements and their purposes.” The more the Constitution adapts, the less coherent its structure becomes.

Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Elizabeth Beaumont

In this third and final post of the series, I argue that today’s constitutional stresses stem less from the “unbinding” Stephen Skowronek identifies than from a broader constellation of post-inclusion challenges—extreme polarization, economic inequality, technological disruption, and deliberate political choices that have strained democratic governance across many systems. Skowronek’s framework illuminates real challenges with the conflicts that can arise from democratization in a highly pluralist constitutional democracy, but it risks overstating the civil rights revolution as the primary cause while underestimating alternative sources of constitutional grounding. The history of civic constitutionalism suggests a different possibility than Skowronek’s bleak prognosis: a contentious yet regenerative process of civic struggle and consensus-building.

There is growing agreement among legal and political scholars that the U.S. is facing a serious constitutional crisis, with many contributing factors identified (see, e.g., Ackerman 2010, Mann and Ornstein 2012, Levitsky and Ziblatt 2018). Skowronek's analysis offers a different, older, and counterintuitive diagnosis rooted in American constitutional development: bounded resilience, serial adaptations that progressively loosened the constitutional framework, and the democratic breakthroughs of the civil rights revolution that ultimately "unbound" the Constitution from its earlier stabilizing exclusions (21-22). This provocative and important argument demands continued engagement. 

Yet as insightful and impressive as Skowronek’s account is, it functions less as a complete explanation than as one significant strand in a more complex and multicausal account. Reexamining the civil rights revolution shows that it produced a partially successful constitutional adaptation through the rise of a civil and social rights state, complete with new institutional mechanisms, auxiliaries, and meaningful (if incomplete) cross-racial consensus. Many contemporary dysfunctions stem from subsequent forces– economic inqualities and dislocation,  9/11 and its aftermath and deliberate expansions of executive power, the internet and digital revolution— that are not reducible to civil rights-era “unbinding” or fallouts. That a similar pattern of democratic conflicts and strain is visible across countries with markedly different constitutional structures and developmental trajectories suggests that bounded resilience is at most one dimension of a more complex and multicausal crisis (see, e.g., Levitsky and Ziblatt 2018, Nord et al 2025).

Prosecutorial Tanking

Gerard N. Magliocca

There are two standard explanations for the recent high-profile refusals by grand juries in DC to return indictments. One is that they are engaged in a kind of resistance to what they see as executive overreach. Another is that the prosecutors are just incompetent.

But there's a third possibility. Perhaps prosecutors are deliberately making a weak presentation. Think about that for a second. Say you're told to seek an indictment in a case that is weak or unjustified. One option, given that grand jury proceedings are secret, is to just go into the room and try to lose. Then you can come out and tell your superior: "Look, I tried to get the indictment that you wanted, but the grand jury refused." Unlike NBA teams that tank, no one will ever know the truth.

Reexamining the Civil Rights Revolution: Partial Adaptation and the Rise of a Civil and Social Rights State

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Elizabeth Beaumont

My first post outlined Stephen Skowronek’s adaptability paradox and his sobering claim that the civil rights revolution ruptured the Constitution’s bounded resilience. On his telling, broad inclusion dissolved the social exclusions that once enabled stable constitutional reorderings, leaving power and authority reconfigured in ways that magnified rather than managed conflict.

Here I undertake a reassessment of the civil rights revolution of the 1960s–70s. I argue that it can be seen as a partially successful adaptation, producing new institutional mechanisms and “auxiliaries” in the form of a “civil and social rights state,” alongside meaningful if contested cross-racial consensus on commitments to political inclusion and equality. Landmark statutes, Great Society social programs, administrative enforcement, litigation and judicial decisions, and civic mobilization contributed to significant, if incomplete, reordering. 

For Skowronek, the civil rights revolution marks the culmination of the adaptability paradox, and the point at which the constitutional system's bounded resilience was dissolved by broad democratization. As the body of "We the People" expanded toward broad inclusivity, encompassing not only white men, but African Americans, women, Indigenous peoples, racial and religious minorities, disabled people, LGBTQ+, and others, the U.S. constitutional system, on his account, lost its capacity for regeneration and spiralled into dysfunction. Although he wholeheartedly supports the civil rights revolution’s goals of inclusion and equality, Skowronek’s analysis of its political and constitutional consequences is almost entirely negative, seeing them as the root causes of destabilization. It can be easy to adopt a purely celebratory or uncritical stance toward the civil rights revolution, but Skowronek’s evaluation overcorrects in the other direction – underestimating the achievements and institutional innovations, overlooking the partial consensus achieved, and placing too much blame on the civil rights era for the current crisis. Reconsidering this history suggests a mixed picture, one that included many of the elements Skowronek associates with successful constitutional adaptation through the party state and administrative state.

The Unbound Constitution Reconsidered: Skowronek’s Framework and History of Constitutional Reordering

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Elizabeth Beaumont

When Stephen Skowronek argues that the civil rights revolution “unbound” the U.S. Constitution, he posits a troubling paradox: America’s greatest democratic achievement—the sweeping inclusion of the 1960s and 1970s—may have ended the system’s adaptive capacity.  But does this diagnosis adequately capture what happened after the 1960s? In this first post of a three-part series, I engage Skowronek’s sophisticated historical-structural analysis while highlighting important dimensions his framework underestimates or overlooks. The civil rights revolution, I will argue in the next post, produced a partially successful constitutional adaptation—one that generated new institutional mechanisms and meaningful (if incomplete) cross-racial consensus. Current dysfunctions stem less from “unbinding” than from a complex set of post-inclusion stressors. Constitutional grounding, moreover, can emerge from the accumulated meanings forged through successive civic struggles rather than old exclusions.

Since the framing of the U.S. Constitution, waves of reformers– from Anti-Federalists, to free African Americans and anti-slavery activists, to suffragists, labor activists, progressives, and civil rights activists– have challenged undemocratic features of the system and pushed for inclusion and transformative change. Their ideas and struggles have reshaped the political community and launched constitutional reconstructions (see, e.g. Ackerman 1991, Ritter 2006, Balkin 2011, Beaumont 2014). In his thought-provoking new book, Stephen Skowronek turns our focus to crucial questions of how, and whether, such reorderings were politically implemented. Were their goals carried forward through stabilizing adaptations that anchored a new consensus, or were they obstructed, redirected, and left unfulfilled? Skowronek draws unsettling conclusions from his analysis of four historical eras of constitutional development. His most sobering contention is that the resilience of the U.S. Constitution is not only limited, but may be inseparable from its injustices: earlier adaptations had been made possible by the very exclusions that prevented full democratic citizenship for African Americans, women, and others, by limiting the field of competing interests enough to enable minimum consensus.  On this account, although the civil rights revolution of the 1960s-70s brought broad inclusiveness to American democracy, it could not generate a successful constitutional adaptation. Instead, he argues, the Constitution became “unbound,” loosened from its founding structure and pulled back and forth in divisive conflicts, eventually producing the present era of polarization, democratic backsliding, and constitutional dysfunction. In this telling, the greatest achievement of American democracy – the sweeping democratic expansion of the latter 20th century – may have ended the constitutional system’s capacity for successful reordering, with no clear way forward. 

By drawing on his far-ranging expertise in American politics and taking a systems-level approach, Skowronek offers a sophisticated account of broad patterns of constitutional change, boldly reconceptualizing the development of constitutional democracy in the U.S. This includes potent arguments regarding how new institutional mechanisms and “auxiliaries” may help constitutional adaptations succeed by reorganizing governance and managing conflict. His framework also provides a further, and powerful, challenge to originalist accounts of the constitutional order. Yet his understanding of “bounded resilience” and the criteria for judging the success or failure of a constitutional adaptation raise questions.

The Material Foundations of American Constitutional Development

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Jeremy Kessler 

Stephen Skowronek’s The Adaptability Paradox offers an admirably concise overview of American political and legal development from the Founding to the present day. That would be enough to make it a valuable addition to legal scholars’ bookshelves and graduate students’ orals lists. But the book is more than synthesis. It advances an original, interpretive argument about the paradox that churns in the engine room of American constitutional government. According to Skowronek, the trend that has defined American legal and political development is the transfer of ever greater power to the national government in response to ever more expansive bids for social and political “inclusion” (pp. 20-25, 209-11). Whether dubbed “democratization” (p.3) or “inclusive nationalization,” which more precisely captures Skowronek’s meaning, this trend has periodically pushed up against two stabilizing features of American constitutional government. The first is the original constitutional text, which sought to protect particular and local interests from national majorities. The second is a series of social exclusions (of the propertyless, of Black Americans, of women, and so on) that enabled coordination and cooperation among otherwise rivalrous particular and local interests. As inclusive nationalization dislodged particular and local interests and overrode social exclusions, new “auxiliary” institutions emerged to restabilize constitutional government. The most significant of these extra-constitutional auxiliaries were the “party state” of the nineteenth century and the “administrative state” of the twentieth (p. 19, 39-108). Each helped to mediate the conflicts unleashed by inclusive nationalization, establishing new mechanisms for coordination and cooperation across an ever larger and more diverse polity.

The mid-twentieth century rights revolution largely fulfilled the project of inclusive nationalization, but it left no new auxiliary in its wake (pp. 126-156). Today, as a result, social struggle takes the form of factional appeals to bare yet indeterminate constitutional principles. The goal of these appeals is to secure greater factional control of the formal branches of constitutional government and the old extra-constitutional auxiliaries of party and bureaucracy (pp. 26-29, 203-205). Principles alone, however, cannot and have never knit back together riven social relations. Only a novel auxiliary institution, capable of coordinating contemporary social rivalries, could restabilize constitutional government. The absence of such an auxiliary leads Skowronek to ask whether the very diversity of the present polity and the intensity of its inclusive (if often rivalrous) expectations now impede the construction of a new coordinating mechanism (pp. 225-233). In other words, the laudable capacity of American constitutional government to adapt to inclusive nationalization may have rendered further adaptation impossible. Hence, the “paradox” of Skowronek’s title.