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. 

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