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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Power of the Purse II: Shifts in Power within Congress
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Thursday, June 04, 2026
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
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