No American president has worked as hard as Donald Trump to sabotage the intended constitutional distribution of powers among the legislative, executive, and judicial branches of government and to bring all governmental power into his hands. Sadly, and too often, the Supreme Court under Chief Justice John Roberts has been a dependable ally of the president. The December 8 oral argument in Trump v. Slaughter, the case involving Trump’s firing of the Federal Trade Commission’s Democratic members, reveals a majority likely to overturn even a unanimous 90-year-old precedent upholding Congress’s authority to create independent agencies.  

So far, the chief source of institutional resistance to Trump’s usurpations has been the lower federal judiciary. Trump’s most creative attempts to kneecap them have failed. These include a suit against every single federal district judge in Maryland—both active and senior. It was a clumsy attempt to negate a district court’s order that judges be given at least 48 hours to review any immigrant’s petition for habeas corpus before the administration could deport them or change their legal status. Another lawsuit sought an advance judicial imprimatur from the Western District of Texas for federal agency moves to extinguish collective bargaining agreements. These moves might produce legal challenges in less friendly parts of the country. The request for a get-out-of-court-free card was too much for the Trump-appointed trial judge to swallow. 

But the Supreme Court has blocked lower courts from providing relief against Trump’s power grabs. In the Slaughter case, Trump has presumed to fire duly appointed administrators at will, notwithstanding explicit statutory provisions limiting his removal authority to good cause. He has made similar moves against members of the Consumer Product Safety Commission, the Federal Labor Relations Authority, the Merit Systems Protection Board, the National Labor Relations Board, and the Surface Transportation Board, among others. Lower courts have sought to enjoin Trump’s moves and keep the discharged administrators in place. They have rested on the ground that the Supreme Court has not overturned the binding legal precedent that upholds independent agencies, Humphrey’s Executor v. United States. For its part, however, the Supreme Court—using its so-called emergency docket—has approved Trump petitions to keep his fired officials in limbo until it finally decides Humphrey’s Executor’s fate. It has, instead, signaled, as did the conservative justices during the Slaughter oral argument, that a majority remains enamored of a theory of presidential removal power at odds with the constitutional text and history. 

In defense of the Court, however, the scope of the removal power has long been the subject of serious debate. It is even more disturbing that the Court has indulged Trump’s constitutional workarounds, where there is no serious question that he is usurping Congressional powers. Consider, for example, Congress’s exclusive authority to establish—and eliminate—government offices and agencies. As Chief Justice (and former President) William Howard Taft wrote in Myers v. United States—a favorite citation of the Roberts Court majority: “To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed.” Yet Trump is trying unilaterally to reorganize the executive branch by eliminating agency functions and, in some cases, mothballing agencies altogether. And the Roberts Court has repeatedly sidelined lower court orders temporarily blocking Trump’s sabotage.  

For example, a federal district court in Massachusetts enjoined personnel terminations and program transfers undertaken by Education Secretary Linda McMahon in response to a March 2025 Trump executive order directing her “to the maximum extent appropriate and permitted by law, [to] take all necessary steps to facilitate the closure” of her Department. The U.S. Court of Appeals for the First Circuit declined to stay that injunction. Yet on July 14, over three dissenting votes, the Supreme Court stayed the order as requested by the Trump administration, allowing the department’s dismantling to continue without explanation. As the plaintiffs’ pursuit of a permanent injunction continues to percolate in the lower courts, the Trump-McMahon sabotage continues. The Supreme Court effectively shrugged off the ongoing damage to both the department and the separation of powers. 

Similarly, the Supreme Court has hampered challenges brought by unions, nonprofit organizations, and local governments to block mass layoffs undertaken in response to the February executive order, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.” In one case, a federal judge in San Francisco required the government to reinstate more than 16,000 workers fired by six agencies—an order the Ninth Circuit declined to stay. With two Justices in dissent, the Supreme Court blocked the lower court order on the ground (not actually explained in its opinion) that the nonprofit organizations named in the order lacked standing.  

In a second case, a different federal district court judge issued a temporary restraining order to pause the implementation of the Trump executive order through widespread RIFs and agency reorganizations across 22 federal agencies. Again, the Ninth Circuit refused a stay of relief. This time, over Justice Ketanji Brown Jackson’s sole dissent, the Supreme Court blocked the lower court on the ground that the executive order and OPM’s implementing memorandum are likely lawful. An unsigned opinion for at least a majority of the justices, along with a concurrence by Justice Sonia Sotomayor, suggested that such challenges would have to be assessed on an agency-by-agency basis. 

The effect of the Supreme Court’s interventions—each based on a narrow, technical understanding of the litigation—is a deliberate obliviousness to the administration’s actual ambitions. In contrast, the district courts issued careful opinions detailing the harms portended by the “critical transformation of the Federal bureaucracy” that Trump’s executive order promised to accomplish without Congress’s input. 

Trump has been equally aggressive in seeking what might be called workarounds that undermine Congress’s power to control federal spending—arguably the legislature’s key lever in a constitutional system of checks and balances. A recent New York Times editorial usefully outlined Trump’s three key strategies: Refuse to spend money that Congress has allocated, spend government funds in ways that Congress has not authorized, and overturn Congress’s decisions to spend money on specific programs by undermining the relevant agency’s capacity to implement the programs he disfavors. Just as the Times observed, Trump “has repeatedly ignored laws passed by the House and the Senate to spend money, or not spend it, based on his whims and agenda.” 

Historically, it has primarily been the duty of congressional oversight committees or the Government Accountability Office (GAO), headed by the Comptroller General, to call out such lawlessness. Indeed, as detailed in a November report on the administration’s behavior, Brookings Senior Fellow Molly Reynolds states that the GAO has so far recorded seven instances of second Trump administration legal violations. She adds that it “is likely a significant undercount, since it only includes actions on which GAO has completed an investigation.” Among the brazen violations not yet assessed by GAO is the administration’s freeze on food assistance under the Supplemental Nutrition Assistance Program (SNAP) during the recent government shutdown. Once again, after a federal district court ordered that SNAP payments resume and a Court of Appeals denied a stay, the Supreme Court came through for the Trump administration, again without explanation. Similarly, the Court had blocked lower court attempts to force the executive to comply with Congress’s approved spending for foreign aid and education.  

The possible exceptions to the Roberts Court’s forbearance from disciplining Trump’s lawlessness may come in cases that fit a third category. They do not involve statutes at odds with the Roberts Court’s theory of the unitary executive. Nor do they involve Trump’s blunderbuss attempts to bypass the constitutional inconvenience that power over government structure and spending belongs to Congress, not the executive. These are cases in which Trump purports to act under duly enacted statutes but stretches his legal authority beyond what the legislative text will bear. 

For example, and to Trump’s undoubted dismay, the November 5 oral arguments in two Supreme Court cases challenging his tariffs—Trump v. V.O.S. Selections and Learning Resources v. Trump—saw a majority of justices raise concerns that may doom his current policies. A loss before the Court would deal a severe political blow. As the Court of International Trade explained, the challenged orders have “imposed tariffs of unlimited duration on nearly all goods from nearly every country in the world.” Voiding these tariffs would undermine Trump’s political credibility at home and weaken his economic leverage abroad. 

In issuing his challenged tariffs, Trump explicitly relied on the 1977 International Economic Emergency Powers Act (IEEPA). That law provides certain authorities to allow the President “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Among those powers is the authority to “regulate . . . any . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest.” In a technical sense, what the tariff cases are about is the scope of power Congress conferred on the President when it used the word, “regulate.” 

Four orders based on the IEEPA earlier this year imposed tariffs on Canada, China, and Mexico in response to an emergency Trump declared over the flow of illegal drugs into the U.S. Three other IEEPA-based orders, including the so-called Liberation Day tariffs, are rooted in a declared emergency caused by “a lack of reciprocity in [U.S.] bilateral trade relationships, disparate tariff rates, and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption.” The core of the administration’s argument for all these measures is that the tariffs are a form of “regulation” of imports authorized by IEEPA in response to “unusual and extraordinary” threats. 

Stepping back from the technical issues of statutory interpretation, the boldness of Trump’s tariff schemes is a remarkable power grab. The U.S. has not imposed tariffs of this magnitude since the 1930s. As I wrote in a Brookings paper co-authored with Robert E. Litan, a Trump victory would “all but entirely transfer the full scope of Congress’s tariffing power under the Constitution from the legislative to the executive branch.”  

During the oral argument on tariffs, the justices’ skepticism had two complementary strands. One involves a close reading of the word “regulate,” using traditional technical rules of statutory construction. For example, IEEPA is not a revenue-raising statute; the words “tariff,” “duty,” and their synonyms do not appear in it. As Justice Elena Kagan pointed out, the word “regulate” appears in a list of verbs that confer various powers on the president. Still, no other verb has anything to do with raising revenue. When Congress lists terms in that way, the words are assumed to fall within the same category, which in IEEPA is arguably “forms of administrative control,” not measures to raise money. 

Justice Sonia Sotomayor further noted that the objects of permissible “regulation” under the IEEPA extend beyond imports. If the word “regulate” allows the president to impose tariffs on imports, IEEPA would also enable the levying of tariffs on a wide variety of transactions, including exports, which Solicitor General D. John Sauer acknowledged would be unconstitutional. More than one Justice pointed out that all but one of the other existing federal statutes that confer tariff authority on the president use the word “tariff” or “duty”; the one exception is a statute that gives the president power to “adjust imports,” but does so in a statute that explicitly anticipates the levying of duties.  

Sauer’s main counterargument rests on the drafting history of the IEEPA. The relevant language of the statute was drawn from another law—the Trading with the Enemy Act of 1917 (TWEA). Before IEEPA was enacted, a lower court had allowed President Richard Nixon to impose a 10 percent duty on imports under the authority of the TWEA. Because Congress was presumably aware of that case and borrowed the TWEA’s language for the IEEPA, the Government argues that the authority to “regulate” must mean the same thing under both statutes, including “regulation” by tariff. (At the same time Congress enacted the IEEPA, it limited TWEA’s authority to wartime.) Arguing on behalf of the private parties challenging Trump’s tariffs, however, former Deputy Solicitor General Neal Katyal insisted that there was no evidence Congress was either attentive to or agreed with the earlier decision. 

The second strand of skepticism focused on the bigger picture—namely, the stakes for the separation of powers and checks and balances if the Court were to accept Trump’s broad understanding of his statutory authority. Justice Neal Gorsuch has been the most voluble member of the Court in expressing concern that Court precedents defining the so-called “nondelegation doctrine” have left Congress too much leeway to abdicate fundamental policy-making power to the executive branch. His questions echoed that concern. At one point, he got the Solicitor General to concede that, under Trump’s view of the IEEPA, another president could unilaterally “impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change”—which, for Gorsuch, would not be an attractive proposition. 

Both Gorsuch and Roberts also joined the liberal Justices in pressing Sauer on what has come to be called the “major questions doctrine”—a requirement that the executive branch find exceptionally clear statutory authority when it purports to exercise administrative power in an “unheralded” way. Sauer responded that less explicitness is required when the president is exercising power in a foreign relations context and when the statute being invoked is plainly intended to equip him to respond to emergencies. Roberts seemed skeptical. He pointed out that the burden of tariffs falls domestically, not just abroad. Roberts voiced his doubts as follows: “You have a claimed source in IEEPA that had never before been used to justify tariffs. . . and correct me on this if I’m not right about it—the justification is being used for a power to impose tariffs on any product from any country for—in any amount for any length of time. That seems like—I’m not suggesting it’s not there, but it does seem like that’s major authority, and the basis for the claim seems to be a misfit.”  If the liberal Justices are joined in their own patent skepticism by even two members of the Roberts-Barrett-Gorsuch trio, Trump’s current tariff initiatives go down. 

At least some conservative Justices joined in another unusual move in late October that also suggests a willingness to entertain arguments that Trump is overreading the statutory powers Congress has actually delegated to the President. Trump v. Illinois is Trump’s application to the Supreme Court to stay a lower court order blocking the administration from federalizing and deploying the National Guard within Illinois. The relevant statute allows a President to place National Guard troops under federal command in any of three circumstances. The only one even hypothetically relevant is if “the President is unable with the regular forces to execute the laws of the United States.”  

U.S. District Court Judge April M. Perry found this statutory trigger irrelevant. The Trump administration claimed that the statute’s reference to the inability of “regular forces” to execute the laws referred to the “execution of the federal laws by the federal officers who regularly enforce them, without undue harm or risk to officers.” Perry rebuffed that reading, concluding that the mention of “regular forces” referred to the U.S. armed forces, not civilian officers—a circumstance that would permit law enforcement by the National Guard “extremely rarely.” To invoke that clause, the President would have to assert that federal military force alone, without the National Guard, would be insufficient to execute federal law, which is a highly counterintuitive proposition. She concluded that, regardless of the government’s interpretation of “regular forces,” “there has been no showing that the civil power has failed” to execute the laws.  

In upholding Judge Perry’s grant of preliminary relief, a unanimous Seventh Circuit panel declined to settle which reading of the statute was correct. The panel held that, regardless of what constitutes “regular forces,” the administration had failed to show that federal civil officers were unable to enforce the law. When the Trump administration turned to the Supreme Court to stay the order below, the Court directed the lawyers for both sides to file additional briefs on “[w]hether the term ‘regular forces’ refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation.” It is possible that a majority of Justices would like to decide the case against Trump if they can be persuaded that he is misreading the statute, as opposed to just fabricating an emergency. 

Of course, neither the Justices’ skeptical questioning of tariffs nor their request for additional briefing on National Guard deployment ensures that Trump’s challengers will prevail. Nonetheless, even a suggestion of legal pushback contrasts with the Court’s reaction to his independent agency firings and other cases in which lower courts have resisted Trump’s usurpations of legislative authority. Writing about the tariff cases, Abbe Gluck, a Yale Law School professor and leading scholar on statutory interpretation, has observed: “[A] focused textualist analysis coming out against the president [is less] likely to be viewed by the president as a major smack down. And that, indeed, may be part of the attraction of this approach for at least a portion of the court.” It is also why these cases are an inadequate counterweight to the Court’s enthusiasm for unitary executive theory and its blinkered reaction to Trump’s blitzkrieg against pluralistic democracy. 

The post How the Roberts Court Indulges Trump’s Constitutional Workarounds  appeared first on Washington Monthly.

By now, it’s routine for the Supreme Court under Chief Justice John Roberts to misuse its so-called emergency docket to short-circuit lower court orders blocking the Trump administration’s aggressive anti-constitutionalism. But its decision this week to lift a lower court injunction barring Immigration and Customs Enforcement (ICE) agents from conducting raids around Los Angeles by armed and masked agents engaged in racial profiling is among the most shameful. In the context of affirmative action, this Court has piously opined: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Yet when it comes to immigration, the Court will allow ICE to proceed for now as if any brown-skinned, Spanish-speaking, low-wage worker in central California is reasonably suspected of being deportable. 

The public owes Justice Brett Kavanaugh some gratitude for explaining his vote in concurrence with the majority; often, the Court’s “emergency” orders arrive simply as unsigned riddles. His opinion, however, is deeply unpersuasive. Still, it provides a service by presenting both the Court’s seemingly blinkered understanding of the practices in dispute and its disregard for the role of trial judges in fact-finding decisions.  

The case in question, Vasquez Perdomo v. Noem in the lower courts, was filed as a potential class action brought by five individual plaintiffs and three membership organizations. They proved to the satisfaction of the U.S. District Court for the Central District of California that senior federal immigration officials working in and around Los Angeles had authorized ICE agents to stop and detain individuals for interrogation based entirely on four highly generalized factors: (1) their apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work. In other words, instead of responding to a “reasonable suspicion” that might legally justify individual stops, ICE was detaining people based on characteristics likely to describe a great many innocent people. Justice Sonia Sotomayor explains in her dissent that the Fourth Amendment does not allow stops based on criteria that broad. Yet in Central California, a judicial district where nearly half the population identifies as Latino or Hispanic, there are quite likely millions of U.S. citizens and fully documented alien residents whom such an indiscriminate, ethnicity-based filter would catch. The Ninth Circuit had already declined to stay the District Court’s injunction barring ICE’s practice, viewing the plaintiffs as likely to prevail after a full trial and judging that the government would suffer no irreparable harm while its four-factor searches were suspended. 

Kavanaugh, to the contrary, argues that the government is likely to prevail on two issues. One is whether the plaintiffs have standing to sue—in other words, did their allegations raise a sufficient likelihood of imminent harm to warrant an injunction barring interrogation stops that have not yet occurred? But “standing” is a notoriously malleable doctrine, and the case Kavanaugh cites as relevant precedent for the government quite easily supports the opposite conclusion. 

City of Los Angeles v. Lyons is a 1983 case involving a motorist stopped for a vehicle code violation. Despite offering no resistance to officers, Adolph Lyons was placed in a chokehold that rendered him unconscious and damaged his larynx. He sought both damages for his injury and an injunction against the use of chokeholds by the police. The Court said Lyons could sue for damages based on the actual chokehold, but not for an injunction against future police practices. Lyons, the majority concluded, had not proved “a sufficient likelihood that he [would] again be wronged” by the police employing excessive force. 

Lyons and Vasquez Perdomo are fundamentally different. Because Lyons was suing only as an individual, speculation about future harm could focus only on him personally. The plaintiffs in Perdomo are asking the trial court to allow them to proceed as a class action on behalf of “[a]ll persons who, since June 6, 2025, have been or will be subjected to detentive stop by federal agents in the District without a pre-stop, individualized assessment of reasonable suspicion concerning whether the person (1) is engaged in an offense against the United States or (2) is a noncitizen unlawfully in the United States.” There are thousands, if not millions, of people whose futures are at stake. 

Moreover, by the time Lyons’s case was heard in 1982, the Los Angeles Police Department had adopted a ban on “bar-arm chokeholds” and entered into a moratorium—since made permanent—against “carotid artery” holds, except in circumstances that would justify the use of lethal force. Under these circumstances, the Court had every reason to doubt that Lyons needed the protection of a court order barring the future use of chokeholds against him. As for Vasquez Perdomo, Justice Sotomayor describes the vastly different policy orientation at stake: “Secretary of Homeland Security Kristi Noem has called the District Judge an ‘idiot’ and vowed that ‘none of [the Government’s] operations are going to change.’ The CBP Chief Patrol Agent in the Central District has stated that his division will ‘turn and burn’ and ‘go even harder now,’ and has posted videos on social media touting his agents’ continued efforts, chasing, cuffing, [and] deporting’ people at car washes.” Against this background, any brown-skinned, Spanish-speaking Californian appearing to work in a low-wage occupation or even waiting for a bus has reasonable cause to fear being stopped by a federal agency running amok. 

Kavanaugh suggests that the government will likely prevail on the argument that its four factors are sufficient to establish reasonable suspicion. After all, he argues, it is probable that many of the undocumented aliens in California come from Mexico or Central America, “do not speak much English,” and seek employment in a predictable set of jobs that “do not require paperwork.” None of this negates the fact, however, that without some additional factor—for example, the record of a particular employer in hiring undocumented persons—these elements alone are likely to describe a large percentage of the low-wage workforce in Central California, documented or not. 

Finally, under Supreme Court precedent, emergency relief for the Trump administration should require a showing that the so-called balance of equities—weighing the harms caused to the government by the injunction versus the interests at stake for the defendants—is tilted in the government’s favor. In conducting his own balancing, Kavanaugh drastically minimizes the interests of the detained individuals. Undocumented persons who are detained, he claims, do not have any “especially weighty legal interest” in avoiding interrogation based on ICE’s criteria. Persons lawfully present, he says, face only “questioning” that is “typically brief.” They will “promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.” Unfortunately, the District Court record shows that the second of these claims is untrue. And Kavanaugh’s accounting does not acknowledge the reasonable fear and apprehension of millions of law-abiding Californians who fit the “suspect” criteria and are stigmatized by ICE’s policies. 

In Trump v. Hawaii, the Court’s 2018 decision upholding the so-called “Muslim ban” imposed by the first Trump administration, Chief Justice Roberts took umbrage at the suggestion in a Sotomayor dissent that the majority was making an error of judgment akin to the Court’s infamous Korematsu decision. Yet one paragraph in the Kavanaugh opinion struck me as worthy of a similar rebuke. He writes: “To the extent that excessive force has been used, the Fourth Amendment prohibits such action … I agree with the dissent on that point. But … this injunction against brief stops for questioning does not address the use of force issue.” 

Korematsu legitimized the decision of the Franklin D. Roosevelt administration to place Japanese-Americans in internment camps because, the authorities claimed, it was too difficult to sort out the loyal from the disloyal as individuals. But Justices in the majority denied they were doing any such thing. Fred Korematsu had been convicted only of violating a so-called exclusion order, requiring him to leave the San Leandro area but not specifying where he was to go. The Court refused to “pass at this time upon the whole subsequent detention program in both assembly and relocation centers,” because “the only issues framed at the trial related to petitioner’s remaining in the prohibited area in violation of the exclusion order.” In other words, the majority could not be expected to recognize that Japanese-Americans were effectively being moved into internment camps by “excluding” them from everywhere except the camps themselves and where they would be assembled for transport.  

Kavanaugh implicitly endorses a similar inattention. As Sotomayor wrote this week: “Countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact they make a living by doing manual labor.” Kavanaugh’s opinion implicitly asks readers to keep this reality outside their field of vision. 

We do not know whether the five Justices other than Kavanaugh who are also content to leave ICE undisciplined are motivated by the standing issue, the Fourth Amendment issue, or a disinclination to confront the Trump administration in a case where it might choose outright defiance of the high court. But their unexplained votes do them no credit. As Sotomayor says, what the plaintiffs proved in the trial court about ICE’s conduct is “unconscionably irreconcilable with our Nation’s constitutional guarantees.” This Court is not meeting the challenge. 

The post A Blinkered Supreme Court Blocks Relief from Racial Profiling  appeared first on Washington Monthly.

Last month’s U.S. armed forces attack on Iranian nuclear sites ordered by President Donald Trump illustrates a truth about the contemporary exercise of American military power perfectly stated by Saikrishna Prakash, the University of Virginia legal historian: “In no other realm have the humbling of Congress and the aggrandizement of the presidency been as comprehensive.” In domestic affairs, Democratic and Republican presidents have differed markedly over the scope of unilateral power vested directly by the Constitution in the nation’s chief executive. By comparison, the obliteration of checks and balances in the deployment of military force has been a decidedly bipartisan affair. 

There is no serious argument that the Constitution, as written, authorizes presidents to launch an unprovoked military attack on another sovereign nation without any plausible claim of prior legislative authorization. As Prakash details in his 2020 book, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, the executive branch’s current understanding of presidential war powers represents a “sharp break with the Founding.” The Constitution provides Congress with a panoply of authorities to control whether the nation makes war and provides for a commander-in-chief who is subordinate to Congress. Yet the Justice Department’s current position is that presidents “may” need advance authorization—note the fudginess here—only for “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” This falls only slightly short of the baseless argument by John Yoo, the UC Berkley Law professor, that the Founders bequeathed presidents with complete discretion over the deployment of military force, subject only to Congress’s withholding funds. 

How we arrived at this constitutional moment is a complex story. It starts with the proposition that our military power is subject to two legal systems, one domestic and one international, each having different rules. That is, there may be uses of force that are constitutional yet in violation of international law, and there may be uses of force consistent with international law that are not constitutional. Regarding international law, Scott R. Anderson, a former State Department lawyer, has recently explained: “Both customary international law and the UN Charter generally prohibit ‘the threat or use of force against the territorial integrity or political independence of any state.’” There are exceptions for self-defense or military force authorized by a United Nations Security Council resolution. Of course, no such resolution authorized bombing Iran, and there is no indication that the U.S. faced an imminent attack. The most plausible international law argument is that the bombing was permissible as part of the collective self-defense of Israel. Its viability would then depend on whether Israel requested our assistance and whether its own military actions against Iran amounted to lawful self-defense. 

However, the international law debate would not resolve the domestic law question. As Prakash would insist—along with many scholars across the political spectrum—a proper understanding of the Constitution would require the executive to ground the legal justification for bombing Iran in prior congressional authorization. It need not be a formal declaration of war, which would have domestic and international legal implications that Congress might not want to trigger. (Such declarations, for example, permit seizing enemy property and apprehending enemy aliens.) Congress may choose to authorize military deployments through statutes. That is why, since 2001, both Republican and Democratic administrations have relied with ever-strained plausibility on the post-9/11 Authorization to Use Military Force against al-Qaeda and allied persons as authority for military attacks against terrorist groups that did not even exist in 2001. Yet Iran has no ties to al-Qaeda, and there is no other statute authorizing last week’s bombing. Under an originalist view of the Constitution, the bombing’s illegality seems indisputable. 

The glitch is that throughout American history, and repeatedly since the Korean War, Congress has acquiesced in unilateral presidential uses of force. The Supreme Court, in separation of powers contexts, has relied on such governmental practice—beyond or in addition to the constitutional text—to determine what is permissible. Following this approach, the Justice Department’s Office of Legal Counsel, in its 2011 advice to President Barack Obama on bombing Libya, wrote that its “understanding of the President’s constitutional authority reflects not only the express assignment of powers and responsibilities to the President and Congress in the Constitution, but also . . . the ‘historical gloss’ placed on the Constitution by two centuries of practice.” In synthesizing the “historical gloss,” OLC found only two constitutional limitations on the president’s authority to use military force—at least where not actually forbidden by Congress. The first possible exception, as noted earlier, is that absent an actual invasion of the United States, history does not support the unilateral initiation of “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” Beyond this, the only limit is whether the president can reasonably determine that a deployment serves “sufficiently important national interests…under his authority to conduct U.S. foreign relations.”  

OLC reiterated this framework during the first Trump Administration concerning U.S. airstrikes against Syria associated with the regime’s chemical weapons program. In explaining the “national interests” test, OLC cited the protection of U.S. persons and property, assistance to allies, support for the UN, and the promotion of regional stability as exemplifying the interests past presidents have relied on. Trump’s letter to Congress on the Iran bombing dutifully asserted: “The strike was taken to advance vital United States national interests, and in collective self-defense of our ally, Israel, by eliminating Iran’s nuclear program.” This so-called limitation on presidential power is no limitation. 

During the Vietnam War era, the administrations of Lyndon Johnson and Richard Nixon justified military involvement in part on the 1964 Gulf of Tonkin Resolution and partly based on what amounted to a reinterpretation of our constitutional arrangements. In a famous 1966 memorandum, then-State Department Legal Advisor Leonard Meeker observed that the Framers vested the president with inherent authority to respond to an invasion of the U.S. even before Congress could react. In the same spirit, he argued, a 20^th-century president, acting in “a far smaller world,” should be able to repel equivalent threats even if far from our shores. This living Constitution approach would produce the same conclusions as OLC’s “national interests” test based on history. 

Of course, Congress, facing eroding support for the Vietnam War, tried to recapture its primacy in war-making by enacting the War Powers Resolution of 1973 over Nixon’s veto. The WPR codified Congress’s more stringent understanding of the President’s Article II authorities. It imposed requirements for interbranch consultation and reporting should the commander-in-chief introduce U.S. forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The WPR also required the president to withdraw troops deployed abroad in 60 days unless Congress extended his authority. But lest it be thought Congress was adding to presidential power, the WPR provided: “Nothing in this chapter… shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities . . . he would not have had in the absence of this chapter.” 

Despite that caveat, the Justice Department has cited the WPR to confirm its expansive reading of presidential authority. In 2011, during the Obama administration, OLC wrote that the WPR shows Congress’s acquiescence to an understanding that Article II authorizes presidents to “dispatch… armed forces outside of the United States, either on missions of goodwill or rescue, or for the purpose of protecting American lives or property or American interests.” After all, OLC says, the reporting requirement is triggered only 48 hours after a deployment, and no president need withdraw before 60 days have passed. This structure “makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.” 

It may seem ironic that Obama, who opposed the invasion of Iraq, embraced so expansive an understanding of presidential war power. But Democratic presidents have been no less likely to deploy force abroad than Republicans. The Reiss Center on Law and Security at the NYU School of Law maintains a database of all reports presidents have filed with Congress under the War Powers Resolution. The database includes 126 such letters responding to the WPR’s requirement of an initial report within 48 hours of military deployment. Ford issued 4, Carter, 1, Reagan, 14, George H.W. Bush, 7, Bill Clinton, 38, George W. Bush, 9, Obama 28, Trump, 6, and Biden, 19. Not all these deployments were equally significant, and the Democratic presidents may have been more fastidious than Republicans in their reporting. Yet the readiness of Democratic presidents to deploy military force unilaterally is plain. And Obama was second to none in offering stretchy statutory interpretations to maintain his authority, most infamously insisting that he was not violating the 60-day WPR limit on military deployment in Libya because U.S. planes helping to facilitate the continuing bombing of Qaddafi were not engaged in “hostilities” within the meaning of the WPR. 

Unfortunately, what OLC under presidents of both parties considers our current constitutional settlement eviscerates the core virtue undergirding the original design: deliberation. The founding generation held that a decision to deploy the military abroad should be preceded by careful and inclusive reflection among three elected institutions, the House, the Senate, and the President. As George Washington wrote to South Carolina Governor William Moultrie: “The Constitution vests the power of declaring War with Congress; therefore, no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorised such a measure.” Defenders of executive unilateralism in war-making often emphasize how technology and global interconnectedness mean distant events can impinge on our national security. What is too often ignored, however, is that technology and interconnectedness—and the infinitely greater impact of American decision-making—magnify the consequences of reckless unilateral decisions to go to war. 

The United States has no clear path out of its current institutional fecklessness. Presidents do not readily embrace more dependency on the legislative branch. Congress, even when less supine than the 119th, has been all too eager to defer to the president, especially, but not exclusively, when one party controls both ends of Pennsylvania Avenue. The federal judiciary has resisted virtually every attempt to restrict presidential military deployments. Understandably, courts think themselves ill-equipped to impose judgments on the political branches with life-and-death national security consequences beyond their competence to assess, let alone manage. 

Many commentators treat the unconstitutionality of bombing Iran as self-evident. To the Framers, it might well have been. In 2025, however, no one in authority takes war powers originalism seriously. The remaining institutional constraint—politics—is, for now, not even a speed bump slowing a belligerent president. 

The post Trump’s Bombing Iran and Its Nuclear Sites: The Continued Constitutional Fallout appeared first on Washington Monthly.

“A dictatorship is ruled by a group of people selected by one person. The people who run the government are responsible to the dictator and no one else. The country of Turkmenistan under Gurbanguly Berdimuhamedow is a good example of a dictatorship. While the country has a constitution, a parliament, and elections, Berdimuhamedow is able to make changes to the rules as he wishes whenever he wants.”

—Oklahoma Historical Society, Types of Government: Dictatorship

On May 22, the Supreme Court doubled down on its strongman theory of the presidency. With three justices in dissent, the Court determined that President Donald Trump’s order removing two federal officials at key independent agencies would remain in place while the issue of their legality makes its way through the judiciary. The two-page order promises that the Court remains open-minded on the ultimate issue, which is whether Congress can set up semi-independent regulatory boards whose members can’t be fired on a president’s whim. But how the majority frames the legal question—and the Court’s cavalier treatment of the stakes in the case—makes it appear inevitable that Trump will soon enjoy his preferred form of government. I searched online for a scholarly Red State source to describe that preference; the Oklahoma Historical Society seems to have nailed it.

Cathy Harris and Gwynne Wilcox are high-level public officials whom Congress protected against at-will dismissal by the president. During the first 100 days of his second term, Trump fired at least 25 such officials. Harris was chair of the Merit Systems Protection Board (MSPB), which protects federal civil servants against “prohibited personnel practices,” such as dismissal for not supporting the president’s party. Under the Civil Service Reform Act of 1978, a member of the MSPB “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” Trump cited none of these grounds for firing Harris.

Wilcox was a Democratic member of the National Labor Relations Board (NLRB), whose mission is to protect workers’ organizing rights and stop unfair labor practices. Under the National Labor Relations Act, an NLRB member “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Wilcox was not charged with neglect, malfeasance, or any other “good cause,” much less afforded notice and a hearing. With only two of five seats filled, the NLRB lacks a quorum to perform its functions. As with Harris, Trump cited no statutory ground for dismissing Wilcox.

Trump administration officials are no doubt hoping that firing tenure-protected administrators will prompt the Supreme Court to hold multimember independent regulatory agencies unconstitutional. Five years ago, a 5-4 decision, Seila Law v. Consumer Finance Protection Bureau, held that Congress violates the separation of powers when it purports to protect the tenure of the principal administrator of a single-headed agency, such as the Director of the Consumer Finance Protection Bureau (CFPB). However, the Court held out the possibility that a different rule might apply to agencies headed by a collective panel or commission, such as the MSPB or the NLRB. The Court, therefore, declined to overrule the Court’s unanimous 1935 decision in Humphrey’s Executor v. United States, which upheld the constitutionality of the independent Federal Trade Commission (FTC) after President Franklin D. Roosevelt tried to oust a Calvin Coolidge appointee, who has been reappointed by Herbert Hoover.

Trump’s administration had targeted Humphrey’s Executor almost from the start of his new term. A letter sent February 12 by Acting Solicitor General Sarah Harris to Senator Richard Durbin, the Illinois Democrat and ranking member of the Judiciary Committee, said the Justice Department had determined “certain for-cause removal provisions that apply to members of multimember regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.” The letter cited the FTC, the NLRB, and the Consumer Product Safety Commission as examples of agency independence that the department would no longer defend. Not surprisingly, the letter represents the implementation of a Project 2025 recommendation.

Even with miles to go, the Harris and Wilcox cases have traveled a circuitous path in the courts. Both dismissed commissioners challenged their firings before a federal trial court and won. On March 4, a D.C. district court judge who had initially barred Harris’s ouster with a temporary restraining order conclusively found that Harris’s firing was unlawful and restored her to her position. On March 6, another D.C. federal district court judge reached the same conclusion as to Wilcox and imposed the same remedy. Three weeks later, however, a split three-judge panel of the U.S. Court of Appeals for the D.C. Circuit stayed (meaning, temporarily blocked) the lower courts’ orders. Judge Justin R. Walker, a Trump-appointed judge in the majority, argued that the Roberts Court had effectively rendered Humphrey’s Executor irrelevant to contemporary independent agencies because “the Court’s recent opinions have ‘characterized the “independent agencies” as executive and have rejected the notion that these agencies exercise quasi-legislative or quasi-judicial powers’” that are not constitutionally guaranteed to be within presidential control. Then, two weeks following the panel’s decision, a majority of the Court of Appeals decided to take the case en banc—that is, to rehear it before the entire court—and undid the temporary stay, thus placing Harris and Wilcox back in office. The government applied to the Supreme Court via its emergency docket to re-impose the stay. The Court’s May 22 order granted its wish.

There are at least four disheartening signals in the majority opinion. The first is that the Court continues to characterize the federal workforce as exercising executive power “on [the president’s] behalf.” Some agencies may help the president exercise powers he enjoys directly under the Constitution. But most agencies—and certainly the NLRB and MSPB—exist to fulfill missions assigned to them by Congress. These agencies are created by legislation, not presidential order. Without a delegation of statutory authority, the executive branch would have no power to do what these agencies do. According to the Constitution, the president’s relationship to executive agencies is supervisory; he is to “take care that the laws be faithfully executed,” but not to perform those duties personally. The agencies’ obligation is not to the president but to the law.

Second, the Court indulged Trump in explaining how it balanced the contending interests of the parties. It allowed the president to violate two statutes in part because, while the case is pending, “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” As Justice Elena Kagan pointed out in dissent, this framing confuses the president for “the Government,” and it minimizes the public interest stakes by treating the plaintiffs’ grievances as merely personal. As Kagan explains, the point in balancing the parties’ competing interests is “not that Wilcox and Harris would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies.” The majority gives Congress’s decision no weight.

Third, and perhaps most bizarrely, the majority goes beyond the case to avoid roiling securities markets. Their hostility to agency independence logically threatens tenure protection for the “Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee.” Placing the Fed under political control would open bank regulation and setting interest rates to naked political manipulation—and terrify investors. Presumably for this reason, the majority hints at a bespoke doctrinal carveout, even if every other independent agency is unconstitutional: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”

The conspicuous problem with that assurance is that—consistent with the Court’s generally glib reading of Founding Era history—there is virtually no resemblance between the 19^th Century banks of the United States, on one hand, and the Board of Governors of the Federal Reserve System, on the other. As Columbia law professor Lev Menand points out, the Board of Governors of the Federal Reserve System is a regulatory agency—it regulates banks just as the Securities and Exchange Commission regulates securities markets—and the First and Second Banks of the United States were banks: “The Federal Reserve Board is not like the First or Second Bank at all. It follows in a completely different, one might even say competing, historical tradition. That tradition is the tradition of expert, multimember commissioner regulation of economic sectors.” In other words, the Board of Governors resembles the FTC more than it does the defunct Banks of the United States.

Finally, the Court persists in calling the 9-0 Humphrey’s Executor decision a “narrow” exception to the Roberts Court’s new rule that Congress may not insulate executive branch administrators from at-will removability. The majority’s rereading of the 1935 case, treated for 90 years as “the rule,” not the “exception,” reveals the majority’s hubris. Humphrey’s Executor was correctly decided just nine years after Myers v. United States, a 6-3 holding that Congress could not condition presidential removals on Senate consent. In the wake of Myers, the 1935 Court’s unanimity allowing Congress to limit the permissible grounds for unilateral presidential removals was extraordinary. Its membership made it more so. The Court’s unusually strong bench included both ardent anti-New Dealers—the so-called “Four Horsemen”—and some of the most progressive Justices of the early twentieth century. Four of the Justices had voted with the majority in Myers. Yet all nine agreed it was within Congress’s powers to insulate the FTC’s membership from at-will removability. They spoke through a single opinion.

Technically, the May 22 order does not mean Humphrey’s Executor is doomed. There are three ways in which it might be preserved. The likeliest, unfortunately, is the least intellectually defensible, but the stay order may hint at it. A majority might try to characterize the 1935 FTC as somehow less “executive” than the current version, but this would be constitutional nonsense. What constitutionally distinguishes the FTC from, say, the State Department is that the subjects over which it exercises authority have nothing to do with powers granted to the president by the Constitution, and its core tasks could have been performed by the other branches of government. They are, in the parlance of the 1935 Court, “quasi-legislative” and “quasi-judicial.” The FTC’s rulemaking could have been done entirely by Congress. Congress could have left antitrust violations and unfair and deceptive trade practices to be policed entirely by private plaintiffs in federal court. Congress need not have given the executive branch any power at all over the economy; the Constitution did not. That is why limiting the removability of FTC Commissioners does not deprive the president of any vested Article II power.

The happiest way to preserve Humphrey’s Executor would be for the Roberts Court to admit its mistake and abandon its commitment to metastasizing the unitary executive theory. As I have explained elsewhere, the Roberts Court misreads the constitutional text and makes a hash of constitutional history. Worse, it insists that the president’s control of the bureaucracy of the world’s most powerful nation in 2025 should somehow be shaped by the Justices’ largely imaginary understanding of what the Framers bequeathed George Washington in 1787. I do not expect any corrective epiphany to occur; the conservative legal movement has championed a too-autocratic view of the presidency since the Reagan Administration, and Chief Justice John Roberts was an early crusader.

The third possibility, which would be both face-saving and intellectually defensible, would be adhering to Humphrey’s Executor and making removability depend on whether Congress structures an agency to be single-headed or multi-headed. Following stare decisis, it would be enough for the Court to adhere to its usual criteria for respecting precedent: Was the precedent correct at the time? (Yes.) Has there been substantial reliance on its holding? (Yes.) Have we learned anything since then to cast doubt on the precedent’s viability? (No.) Is the doctrine workable? (Extremely. Any judge can distinguish between a single-member and a multimember agency.) As a D.C. Circuit judge, Brett Kavanaugh had even argued that independent multimember agencies were better for governance than independent single-headed agencies. Because the two-page order issued on May 22 does not itself overrule Humphrey’s Executor, the Court could invoke stare decisis and resolve the current cases in favor of the ousted officials.

What is most important in these cases is not whether Congress’s decision to make any agency independent was right. In some cases, like that of the MSPB (which exists to protect the integrity of the civil service), it is easy to see why agency independence would seem critical. This is especially likely for agencies engaged almost entirely in administrative adjudication. On the other hand, why the Consumer Product Safety Commission should be independent, even though the Environmental Protection Agency is not, is undoubtedly a question open to reasonable disagreement. The key point is that it is Congress’s job, not the president’s—and not the Supreme Court’s—to decide on the agency structure most necessary and proper to serve Congress’s ends. At-will firing may suit Trump’s desire to change the rules whenever he wants—to govern in the style that the Oklahoma Historical Society imputes to Gurbanguly Berdimuhamedow. But the Constitution does not require those who run the government to be responsible to Trump and no one else. The Supreme Court should erode checks and balances no further.

The post Another Supreme Court Blow for Autocracy? appeared first on Washington Monthly.

The first month of the second Donald Trump Administration displayed a staggering indifference to law and a devastating antagonism to democratic norms. Trump believes he can withhold funds Congress has already appropriated for programs, both foreign and domestic, effectively mothball legislatively established agencies, fire independent administrators, and turn the military into a Praetorian guard. He has given unprecedented power to a private citizen—drenched in conflicts of interest and vetted by no independent authority—to march through agency after agency with a team of tech “bros,” inserting themselves into sensitive government information systems with little to no transparency and no understanding of how government works.

More arcane but no less revolutionary is an executive order on what Congress, by statute, calls “independent regulatory agencies” (IRCs). These are the multi-member bodies, such as the Federal Trade Commission (FTC) or the National Labor Relations Board (NLRB), whose members enjoy statutory protection against removal except for some version of “good cause.” Executive Order 14215, “Ensuring Accountability for All Agencies,” signed in February, would turn agency independence into agency subservience.

Expressly, the new order authorizes the Office of Management and Budget (OMB) to “prohibit independent regulatory agencies from expending appropriations on particular activities, functions, projects, or objects”; requires IRCs to clear regulatory proposals through OMB; and mandates consultation with OMB regarding “performance standards and management objectives for independent agency heads,” as well as each agency’s “obligations for consistency with the President’s policies and priorities.”

Although the prevailing pre-Trump norm has been for the White House to communicate policy views to independent agencies through public statements or formal submissions of comments, the new order dictates that agency heads will “regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council,” and “establish a position of White House Liaison in their respective agencies.”

Like all administrative agencies, IRCs carry out missions assigned to them by Congress. At the FTC, the mission is attacking “unfair or deceptive trade practices” and “unfair methods of competition.” For the NLRB, it is redressing “unfair labor practices.” Other familiar examples include the Federal Communications Commission (FCC), which, among other things, licenses the airwaves for such uses as radio broadcasting and wireless telephony; the Securities and Exchange Commission (SEC), which promotes transparency and integrity among publicly traded companies; and the Consumer Products Safety Commission (CPSC), whose mission is evident from its name. Among the tools Congress has given these agencies are administrative adjudication—for example, prosecuting unfair labor practices or unfair methods of competition—and administrative rulemaking, such as the FTC’s controversial attempt to regulate the use of non-compete agreements.

The mix of administrative techniques IRCs employ differs from agency to agency. But Congress has given them all a recognizable statutory structure. They are multi-member bodies, no more than a bare majority of which can belong to the same political party. The president typically gets to designate which member serves as the agency chair. But the terms of agency members—should they choose to fulfill them—typically last longer than a single presidential administration. And again, most important, members—once appointed by the president with the Senate’s advice and consent—may be fired only for such causes as “inefficiency, neglect of office, or malfeasance.”

Presidents, of course, care about what these agencies do. Their activities can have significant impacts on public health and safety, as well as the economy. Support for the president among voters who tend to view everything that agencies do as “the government” can well be affected by the activities of the IRCs, as much as by the initiatives of those executive branch agencies whose chief officers serve at the president’s pleasure. However, given their investigative and regulatory powers, IRCs’ licensing, prosecutorial, and grant-making functions could be powerful tools in the hands of a president determined to reward friends and punish enemies.

Why Congress makes some agencies independent depends on the politics of a given moment. When he was a judge on the D.C. Circuit Court of Appeals, Brett Kavanaugh explained that multi-member agencies can foster deliberation, provide a monitoring system for each party through the minority’s capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes. Congress may find that putting such an agency at some remove from direct presidential control is reassuring to otherwise volatile markets, as with the SEC, the Federal Energy Regulatory Commission (FERC), or, most prominently, with the Board of Governors of the Federal Reserve System (“the Fed”). But there is no obvious reason in principle that the Consumer Product Safety Commission should be independent, but the Environmental Protection Agency is not; the difference is that President Richard Nixon would agree to the independence of the former, but not the latter. Whatever the reason, one constitutional bottom line is well-established: whether to set up an independent agency is exclusively a decision for Congress, not the president.

Congress’s authority to set up independent agencies was unanimously confirmed in a 1935 case Humphrey’s Executor v. U.S. which upheld the constitutionality of the FTC and invalidated President Franklin D. Roosevelt’s dismissal of an FTC Commissioner, William Humphrey, whom he fired without good cause and in violation of the FTC Act. The Court stated that the FTC carried out its mission through a mixture of so-called quasi-legislative and quasi-judicial functions—rulemaking and adjudication—on subjects not within the President’s explicit Article II domain. When an agency acts outside that domain and is tasked merely “to carry into effect legislative policies embodied in [a] statute,” then, according to Humphrey’s Executor, Congress may protect its members against discharge except for good cause.

Government lawyers and legal academics regarded Humphrey’s Executor as stating a stable constitutional doctrine until the 1980s. The arrival of Ronald Reagan’s administration, however, coincided with a conservative campaign to make something called “unitary executive theory” (UET) the law of the land. The essence of the theory is that Article II of the Constitution vests the entirety of the government’s executive power in the president, who is constitutionally entitled to control how everyone in the executive branch exercises whatever statutory authority Congress has granted them. This theory has different flavors, ranging from more modest to more extreme. Still, even the most modest asserts that Article II entitles the president to fire at will or order the discharge of anyone in the executive branch in whom the president has lost confidence. Under the unitary executive theory, Humphrey’s Executor, though unanimous, was wrong. According to UET, the Constitution does not allow for agencies independent of complete presidential control.

How UET went from being a marginal view of the Constitution to the enabling vision of a Trumpian assault on independent agencies involves a complex history of developments within the executive branch and the courts. The courts were slow to adopt UET. In 1988, the Supreme Court under Chief Justice William Rehnquist, over the sole dissent of the late Justice Antonin Scalia, affirmed Humphrey’s Executor in upholding the independent counsel system Congress enacted after Watergate. The majority in the case, Morrison v. Olson, wrote that they “simply do not see how the President’s need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.”

However, the George W. Bush Administration solidified a new conservative majority, including Chief Justice John Roberts (succeeding Rehnquist) and Justices Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. Roberts and Alito had been Reagan administration lawyers and advocates for UET within the White House and Justice Department, respectively. By 2010, in a case called Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court began challenging the legal logic underlying Humphrey’s Executor. A decade later, in Seila Law v. Consumer Finance Protection Bureau, a 5-4 majority came close to overruling it, demoting Humphrey’s Executor to the status of mere exception to a newly announced general rule—namely, that the President was constitutionally entitled to fire at will the head of any administrative agency. The result was to leave multi-member IRCs hanging by a constitutional thread.

Meanwhile, the intervening years between Reagan and Trump witnessed significant institutional developments within the bureaucracy. By executive order, Reagan, for the first time, instituted a formal system of White House review of all significant rulemaking activity by the many agencies encompassed within the federal executive. Before publishing either proposed or final rules, agencies had to prepare cost-benefit analyses of their proposed initiatives, which were to be cleared through OMB’s Office of Information and Regulatory Affairs (OIRA). Agencies were also told to use their analyses to shape their rules in the most cost-sensitive, legally permissible way. The new oversight system functioned as an alert system for the White House about any new rule that might give them political or policy headaches and as a lever for nudging agencies toward exercising their administrative powers in alignment with the president’s agenda.

Before Reagan issued his executive order creating the new system, OMB Director David Stockman obtained an opinion from the Justice Department’s Office of Legal Counsel regarding the order’s legality. For executive agencies other than the IRCs, the Office of Legal Counsel thought the system a permissible exercise of the President’s Article II coordinating role over the bureaucracy plus his constitutional authority to require agency heads to provide him information. The draft order that Justice reviewed required the IRCs, however, only to provide their regulatory analyses to OMB and to contribute to a periodically published, government-wide agenda of recently completed, still-in-process, and contemplated rulemaking. The executive order draft did not direct how IRCs were to use their analyses in making policy.

Under Reagan, the Justice Department advised that, regarding the IRCs, the President could legitimately play “a coordinating role with only an indirect effect on substantive policymaking,” so long as “none of these actions would directly displace the agencies’ ultimate discretion to decide what rule best fulfills their statutory responsibilities.” Even with that provisional signoff, however, the Reagan Administration decided for political reasons not to impose any oversight requirements at all on the IRCs—not even for purposes of the published rulemaking agenda. Policymakers realized that Reagan’s new oversight procedure would be a lot for a Congress controlled by the Democrats to accept and probably did not want to raise additional political alarm.

George H.W. Bush’s administration, through Barack Obama’s, basically toed the line that Justice had advised in 1981. In 1993, President Bill Clinton revised the Reagan Order to tone down its anti-regulatory rhetoric and tighten the range of regulations subject to White House review. Clinton took advantage of the 1981 Justice Opinion. He required the IRCs to participate in the government-wide agenda of all regulations under development or review and to submit to OMB statements “of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter.” George W. Bush left the system essentially intact. Barack Obama issued an order telling the IRCs that they “should” follow the same steps required of the other administrative agencies and requiring them submit to OMB plans for periodically reviewing existing regulations to help ensure their ongoing soundness. But again, the direct presidential orders were limited to information provision; all else was left hortatory.

And so things stood until the first Trump Administration. During his first four years in office, Trump did not try to formally rein in all IRCs through White House oversight. In 2019, however, he did obtain an opinion from the DOJ’s Office of Legal Counsel that he was constitutionally entitled to do so should he wish. That opinion minimized the distinction that had been important to the OLC lawyers in the Reagan era between imposing a reporting process on the IRCs and affecting their substantive policymaking. It emphasized, instead, the views of the Roberts Court insisting on presidential control over the totality of executive branch administrative action. As for the Court’s unanimous stance in 1935, the opinion stated: “[W]e do not believe that the vision of independence suggested by Humphrey’s Executor accurately describes the current state of the law.” Although the Justice Department under Joe Biden’s administration did not withdraw this opinion, the president did not follow it.

The second Trump administration has embarked on a radical course, arguably going further than the 2019 OLC opinion. In firing NLRB Member Gwynne Wilcox, the administration hopes to elicit a Supreme Court opinion overturning Humphrey’s Executor in its entirety. Insofar as the administration gave any thought to the legality of its February order, however, it must hope that the Court will embrace a radical view of unitary executive theory even more generous than endorsing a plenary power of presidential removal.

Such a theory would draw sustenance from the Court’s remarkable 2024 opinion on the scope of immunity for former presidents from criminal prosecution for misconduct while in office. That opinion reiterates the textually and historically puzzling assertion that the president is, for constitutional purposes, a one-person branch of government. The majority opines that because the president is a one-person branch, the power of administrative supervision must be within a presidential arsenal of “exclusive and preclusive powers,” which neither Congress nor the judiciary may limit. It infers from the president’s obligation to ensure that the laws be faithfully executed a seemingly comprehensive power to direct all “those who wield executive power on his behalf.” In short, through an amazing display of interpretive acrobatics, the Court extracts from the president’s obligation of fidelity to law an all-but-absolute power to ignore it.

Trump’s order takes the radical view of unitary executive theory and runs with it. As I have also explained in an essay for The Regulatory Review, here’s the implicit Trump version: If the president alone is the executive branch, then any delegation of authority by Congress to an administrative agency begins to look advisory. If he chooses, the president could perform all tasks delegated to the executive branch by himself. If that is true, then what any administrator does is not just dependent on the authority Congress has delegated to the executive. It is constitutionally reliant on the president’s willingness to leave that delegation in place and not take over personally. Sociologist Kim Lane Scheppele, an expert on authoritarianism, has explained the new bottom line: “Under the unitary executive theory, agencies no longer trace their primary constitutional authority to congressional delegation of its legislative powers but instead to presidential delegation of his executive power.”

Once a case dependent on Trump’s extreme view reaches the Roberts Court—involving firing an independent administrator or perhaps his asserted control over federal spending—it is unclear what the Court will do. One hopes it would draw a constitutional line around the holding of the Seila Law case, giving the president control over single-headed agencies but affirming the constitutionality of multi-member IRCs. It could also reject the idea that the president’s “unitariness” gives him discretion to ignore Congress’s decisions regarding how agencies are structured, how federal funds are spent, and by whom Congress’s delegated rulemaking and adjudicative tasks are to be performed. The result would be an uneasy equilibrium between the elected branches regarding their relationship to the bureaucracy. It would, however, be a far preferable alternative to giving in to Trump’s radical assertion of authority and overthrowing our constitutional system of checks and balances.

It is assumed among Court observers that the Justices have so far stopped short of overturning Humphrey’s Executor because they do not want to undermine the independence of the Federal Reserve System; such a decision could destabilize both domestic and global markets. Holding the United States unable to have an independent agency controlling the money supply would be an extreme move. Because it is difficult to see how Humphrey’s Executor could be overruled without invalidating Fed independence, the central bank may prove the most decisive reason for keeping Humphrey’s Executor alive. (Trump’s executive order tries to navigate this difficulty by controlling only “its supervision and regulation of financial institutions,” but not “its conduct of monetary policy.” But that won’t solve the removability problem. Members of the Fed cannot be half-fired, half-empowered.)

Unfortunately for Trump (but fortunately for the rest of us), his agenda of ramping up presidential power to incapacitate administrative agencies other than those cracking down on immigrants or DEI programs largely requires the judiciary to adopt a radical separation of powers doctrine. Even Congress’s overgenerous delegation of emergency powers does not give Trump or any president enough statutory authority to sabotage programs Congress has already established and funded. What is worrisome is that a Court that lavished immunity from prosecution on the presidency will be equally irresponsible regarding the president’s subservience to law more generally. Trump’s executive order bets the Roberts Court answers his claims in the affirmative; the rule of law—and democracy—depends on a negative.

The post Trump Escalates His War on Independent Regulatory Agencies appeared first on Washington Monthly.

Using the equivalent, by turns, of a scalpel or a machete, Donald Trump and de facto Chief Operating Officer Elon Musk have been relentless in their opening efforts to hack apart and incapacitate the executive branch of government. They have all but dismantled the U.S. Agency for Economic Development (USAID) and fired critical personnel—including heads of independent agencies, inspectors general, and career prosecutors. They have tempted employees to jump ship early with an unauthorized “deferred resignation program.” They have threatened massive reductions in force and office relocations, foreshadowing the attempted shutdown of government departments. They have proceeded with utter indifference to laws promoting the public interest through transparency, accountability, and procedural regularity. 

No initiative better captures Trump’s approach than his resuscitation of the so-called “Schedule F” as part of our civil service. The idea is to change the legal classification of numerous nonpartisan federal workers, allowing Trump to fire them for any reason—a recipe for reprisals against employees perceived as disloyal. Shortly before the 2020 election, the first Trump administration instituted Schedule F; Joe Biden’s administration rescinded it and developed legal protections against it. Nevertheless, within hours of his inauguration, the 47^th president revived Schedule F by executive order.  

Our nonpartisan civil service is a hard-won national treasure. In the early Republic, Federalists and Jeffersonians no doubt preferred their followers in handing out government employment, but forcing people out of government jobs without just cause was considered inappropriate. With the ascendancy of Andrew Jackson, federal employment began to be doled out (and dismissals ordered) according to the “spoils system.” Political jobs were based on political allegiance. Congress eventually passed the Pendleton Act of 1883, creating the first merit-based federal employment system at the urging of Presidents James Garfield and Chester Arthur. Subsequent administrations expanded the range of positions covered by the Pendleton Act. President William McKinley—admired by Trump for other reasons—used his authority to create civil service rules providing “No removal shall be made from the competitive classified service except for just cause and for reasons given in writing.” McKinley also pioneered the requirement that any person threatened with removal receive advance notice, written reasons, and “a reasonable time for personally answering the same in writing.” Congress incorporated these reforms into statute in 1912. 

Throughout the 20^th century, Congress continued reinforcing the civil service, culminating in the passage of the Civil Service Reform Act of 1978. The CSRA, as it’s known, provides that “selection and advancement should be determined solely on the basis of relative ability, knowledge, and skill”—“without regard to political affiliation.” 

One crucial way the CSRA advances this value is that the great majority of federal employees can be fired only for “cause”—not for partisan reasons. The government employer must give the employee notice of its reasons and an opportunity to respond. The employee may then appeal the agency’s decision to a neutral federal adjudicator and go to federal court. 

There is a narrow carveout to these protections. Senior administration officials—those who hold positions that, in the CSRA’s words, are “of a confidential, policy-determining, policy-making, or policy-advocating character”—may be fired at will. That makes good sense and is consistent with well-established practice. Top political appointees (like senior aides and advisors) frequently turn over, especially at the start of a new administration—even as lower-level career officials (like economists and scientists) continue to serve regardless of who the President is. 

Enter Schedule F, designed to blow up this longstanding system. The policy would classify career federal employees with substantive responsibilities (the economists and the scientists) as holding confidential or policy-determining posts, opening them to being fired for any reason or no reason at all. In other words, it would dramatically expand the civil service exception intended for political officials to cover enormous swaths also of the nonpartisan federal workforce. That is why the new executive order rather bluntly renames the initiative “Schedule Policy/Career.” 

Schedule F is not merely an affront to sound governance principles. It is unlawful. That is for two principal reasons. 

First is the CSRA itself. As explained, the law exempts “confidential, policy-determining, policy-making, or policy-advocating” employees from its broad job protections. But that narrow exception is not a license for the President to reclassify and arbitrarily fire any federal employee who does meaningful work. On the contrary, those words have a specific, longstanding meaning—they refer to political appointees. Since the New Deal, reformers, Presidents, and legislators have exclusively used the confidential and policy-making designation to describe the sorts of senior officials who lead agencies and assist those leaders directly. As one example, an influential presidential commission chaired by former President Herbert Hoover explained in the 1950s that “the term ‘policy-determining’ was used to describe positions which should properly be reserved for political executives.” For its part, the Merit Systems Protection Board—the federal body charged with applying the CSRA—holds “that the terms ‘confidential, policy-determining, policy-making, and policy-advocating’ are a shorthand way of describing positions to be filled by ‘political appointees.” Until President Trump’s first stab at Schedule F in 2020, that was the uniform position of administrations of both parties.  

Because of this, Schedule F’s move to make career employees fireable at will is contrary to the law. Common sense confirms as much. President Trump’s allies have not hidden that the purpose of Schedule F is to permit political reprisals and patronage hiring—the precise evils that the civil service laws protect against. Congress could not have intended that a narrow exception to the CSRA could be used, in effect, to repeal the law itself and end the merit-based civil service as we know it.  

In addition, Trump’s new Schedule F order illegally bypasses regulations issued under the Biden administration to reinforce the merit system for career professionals. The Biden rules put in regulatory form the traditional definition of “confidential, policy-determining, policy-making, or policy-advocating” employees. They provide that any employee moved involuntarily from the “competitive” to the “excepted” service—for example, under a new Schedule F—would retain the protections they previously had in the competitive service against arbitrary dismissal. Trump pretends that the rule is not binding. His new Schedule F order purports to tell the Office of Personnel Management, which oversees the civil service system, to treat the Biden regulations as “inoperative and without effect” until they can be formally rescinded. Yet that is unlawful. To treat rules as “inoperative and without effect” is, in effect, to rescind them, and rescinding the Biden rules requires OPM to follow the same painstaking notice, comment, analysis, and publication requirements that OPM was required to follow in issuing the Biden rule. OPM may be able to rescind the Biden rules, but it cannot be done by executive order. So long as that regulation remains on the books, it will obstruct the Trump administration’s implementation of Schedule F. 

A lawsuit challenging the Trump order brought by Public Employees for Environmental Responsibility (PEER) raises the additional possibility that Schedule F if carried out, would also violate fundamental due process principles. The Fifth Amendment to the Constitution provides that the federal government may not deprive a person of property without due process. Tenure protections for public employees—like those afforded by the CSRA—create an expectation of continued employment that counts as “property” for constitutional purposes. Consequently, before federal civil servants may be fired, they are entitled to notice and a hearing—procedural safeguards closely tracking the CSRA’s protections. Similarly, it has long been understood, by courts and presidential administrations alike, that the CSRA itself bars the government from stripping federal employees of job protections they have accrued. So, even if President Trump could change the rules for newly hired career employees (he cannot, as just explained), the Constitution and the CSRA have long been understood to prohibit stripping protections from any employee once they have them. As the Merit Systems Protection Board has put it, once an employee is on the job, it is “too late to affect [his or her] rights.” Schedule F flagrantly violates those constitutional and statutory rules. 

The civil service is the critical workforce that makes government work for the American people. Four-fifths of the service already lives and works outside the D.C. area, and according to a recent Pew Research Report, “the range of specific federal occupations runs literally from A (740 able seamen) to Z (43 zoologists).” As public policy professor Don Moynihan has written: “It is incredibly easy to bash bureaucrats, and both parties have done it. But public servants are now the front line against government abuses.” The stakes in opposing the Trump-Musk onslaught for governance and the rule of law could not be higher. 

The post Trump’s Schedule F Plan for the Civil Service Would Be a Disaster appeared first on Washington Monthly.

If you were a state senator in 1975 seeking constitutional advice, any competent lawyer would have told you that the reasonable regulation of guns or corporate political speech was well within your authority. A U.S. Representative that same year would have been assured that federal statutes creating independent agencies, protecting an apolitical civil service, or criminalizing presidential wrongdoing would have been solidly within their Article I powers. Fifty years later, the Supreme Court under Chief Justice John Roberts has either determined that the Constitution means the opposite of the foregoing (corporate speech) or that, at the very least, lawmakers must tread with care lest they violate right-wing jurisprudential gospel (guns, separation of powers).

How did the 1975 conventional wisdom about constitutional meaning change? Well-funded activists and academic lawyers, eventually joined by practicing lawyers and Republican judges, coalesced around constitutional arguments that would have seemed marginal, if not laughable, back then. They claimed their jurisprudence proceeded from “originalism,” the idea that the courts could and should return the Constitution of the 20^th century to what it meant in the 18^th. In judicial hands, much “originalist” decision-making seems to torture constitutional text and distort (or ignore) constitutional history. However, in the academy, much originalist theorizing has been done in good faith and with intellectual seriousness. None of that work would have mattered much but for the economic and political power behind the conservative legal complex.

It’s past time for pro-democracy lawyering to push back. Meeting the moment’s immediate challenge does not require progressive lawyers to embrace marginal or questionable legal theories and mainstream them. It requires aggressively using existing administrative law concepts to corral the Trump regime’s apparent lawlessness. There is not a moment to waste. However limited the authority and capacity of federal courts may be, the judiciary is best positioned to slow the Trump-Musk Administration’s campaign of national self-sabotage.

Start with litigation to establish that the federal Administrative Procedure Act provides a legal remedy for intentional maladministration. People working in connection with Elon Musk have deprived government employees of access to key computer systems while giving themselves access to a vast array of sensitive data. At the Treasury Department, Secretary Scott Bessent appears to have issued orders allowing Musk’s team to access data on Social Security and Medicare benefits, grants, and payments to government contractors, including those that compete directly with Musk’s own companies. At the Office of Personnel Management, non-governmental employees may have been given the ability to extract information from OPM databases that store medical histories, personally identifiable information, workplace evaluations, and other private data. These permission grants should be treated as final agency actions that courts can set aside as unlawful.

State attorneys general have standing to challenge the hostile takeover of government databases thanks (ironically) to the Roberts Court’s generous grants of state standing to challenge federal policy. Attorneys general should argue that their states are being injured by improper access to systems on which they rely for payments. They also deserve to sue to protect their citizens’ interest in implementing the Privacy Act of 1974 and other statutes and regulations intended to bolster federal cybersecurity.

States have every reason to fear that Musk & company will use their access to cut off funding based on criteria that cannot lawfully be imposed on current grant programs. Lest anyone doubt it, check out an order from Transportation Secretary Sean Duffy giving funding preference to “communities with marriage and birth rates higher than the national average,” even as the Department “prohibit[s] recipients of DOT support or assistance from imposing vaccine and mask mandates.” You are not alone if you’re wondering what those criteria have to do with sound transportation policy.

A lawsuit to block Musk’s wilding through federal databases would encounter technical defenses, and finding historic cases precisely on point would be challenging because the legal system has never been asked to respond to such rot from within. In normal times, courts would not be inclined to second-guess agency decisions that look like matters of simple management. But these are not normal times. The abuses being reported are so patent and dangerous that courts may see the wisdom of enjoining the mayhem and permitting legal discovery regarding who is doing what to whom and under what authority. Individuals enjoined from lawless action would have incentives to obey a court injunction lest they be held in civil contempt; presidents may pardon the crimes of their co-conspirators, but presidential pardon power does not extend to civil sanctions. The threat of civil contempt against uncooperative federal defendants might slow the stampede.

I have spent over four decades analyzing the limits of executive authority. No executive action since Watergate is, to me, as reckless or as dangerous to democratic norms as the Trump-Musk blitzkrieg. Courts can elaborate on pragmatic legal doctrines that protect democratic values and executive accountability. Resistance to authoritarianism cannot rely on litigation alone, but courts are essential. Start filing cases.

The post To Save Democracy, Start Filing Cases appeared first on Washington Monthly.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” – James Madison, Federalist 47

Donald Trump’s first ten days in office amounted to a blitzkrieg against our constitutional system of checks and balances. The Office of Management and Budget memo issued under his authority—and rescinded two days later—declaring a “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs”; his discharge of National Labor Relations Board member Gwynne Wilcox, and his purge of inspectors general not only violate explicit and binding statutory law. They all aim to undermine Congress’s constitutional priority in establishing domestic policy and regulating the execution of the law.

As David Super, the Georgetown Law professor, has painstakingly explained, Trump’s suspension of a broad swath of federal financial assistance was a brazen violation of the Impoundment Control Act. But it is much more. The suspension was a direct assault on Congress’s legislative powers, including the power of the purse. The memo’s signatory, acting OMB Director Matthew J. Vaeth, wrote: “Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.” This is quite simply getting our Constitutional system backward. The law sets limits to presidential discretion. When Congress makes law—including the appropriation of funds that the executive is compelled to spend and the specification of limited conditions under which presidents may defer spending—the executive branch’s duty is to faithfully execute those laws. The president does not get to unilaterally bar federal funding that supports “Marxist equity, transgenderism, and green new deal social engineering policies,” even assuming that any of that is more meaningful than Project 2025 gobbledygook in the first place.

Trump’s firing of NLRB member Wilcox is intended to nudge the executive-indulgent Supreme Court under Chief Justice John Roberts to complete its subversion of congressional power to create independent agencies. Even under the Supreme Court when it was led by Chief Justice William Rehnquist, it had been conventional constitutional understanding—undergirded by the unanimous 1935 Humphrey’s Executor decision—that Congress was entitled to protect executive administrators from at-will discharge, so long as presidents could, directly or indirectly, effect the removal of any administrator who was violating the law. The Court reaffirmed that position in its 1988 Morrison v. Olson decision, which upheld, by a 7-1 vote, the independent counsel provisions of the post-Watergate Ethics in Government Act. The Roberts Court, however—enamored of the constitutionally dubious “unitary executive theory”—has been working towards the position that presidents can fire at will all subordinate officers of the United States. In the 2020 Seila Law case, a 5-4 Roberts opinion re-cast Humphrey’s Executor and Morrison as “two exceptions to the President’s unrestricted removal power.” They allowed Congress to protect the tenure, respectively, only of “expert agencies led by a group of principal officers” and “certain inferior officers with narrowly defined duties.” Trump no doubt wants the Supreme Court to overturn those exceptions so that he can fire anyone who defies “the will of the people” that he believes he embodies.

In a sense, the mass firings of inspectors general without fulfilling either the statutory requirement of notice to Congress or the statutory requirement of reason-giving is even worse. The Inspector General Act of 1978 permits presidents to remove inspectors general. It simply imposes statutory speed bumps to disincentivize unjustified removals of officials charged explicitly with promoting government economy, efficiency, and effectiveness, as well as preventing and detecting administrative fraud and abuse. Ignoring those statutory requirements thus challenges not only Congress’s authority to create independent administrators but also its authority to regulate, even modestly, how the White House and subordinate officers in the executive interact.

The groundwork for Trump’s assault on the Constitution has been laid by the fecklessness of the other two branches. Essential to the Madisonian system is that each branch of government would stand up for its constitutional authorities in constructive tension among the three branches. “Ambition,” Madison wrote in Federalist 51, “must be made to counteract ambition.” In our hyperpolarized political moment, however, Congress has been all but supine in the face of presidential overreach when the party in charge of Congress is also the president’s party. Congress’s failure to bar Trump from office after he incited an insurrection against democratic government embodied that irresponsibility.

The Roberts Court, for its part, has played an oversized role in upholding an unduly aggrandized, constitutionally mythical theory of “executive power.” Harvard law professor Jack Goldsmith has recently (and not entirely unsympathetically) laid out the cornerstone propositions of unitary executive theory. Its foundational premise is that the Constitution’s vesting of executive power in the President gives the president “all” executive power, which—according to the current Court—is “conclusive and preclusive.” That is, Congress may not regulate its exercise. Even the most cursory reading of the Constitution falsifies this premise. The vesting of executive power does not use the word “all”; indeed, some executive power, such as the power of appointment, is explicitly shared with the Senate. Congress, on the other hand, gets the word “all” used repeatedly. It is empowered “to make all laws which shall be necessary and proper for carrying into execution” Congress’s specific authorities “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” The misreading of the Constitution by right-wing judges and mostly conservative academics helped create a glide path to our current perilous moment.

Trump’s efforts to upend checks and balances are, of course, not new. In his first administration, Trump was eager to subvert Congress’s impeachment power and its general authority to oversee and investigate the executive branch. His method was simple: He just refused to provide information. The White House refused in 2019 to cooperate with the investigation into Trump’s apparent attempt to coerce Ukraine into conducting a criminal investigation targeting Joe and Hunter Biden. At his second impeachment trial, Trump declined to testify in defense of his actions on January 6, 2020. But these were but the tip of the iceberg. Co-Equal, a nonprofit formed to defend congressional oversight power, compiled a report documenting dozens of tactics the Trump administration used to impede over 100 congressional investigations and inquiries.

It is hard to overstate the dangers of the constitutional crisis that Trump is trying to provoke. He is pushing back against Congress’s key levers as a co-equal branch: not only its investigative powers but also its primacy in setting national policy, its authority to structure the offices of administration and to regulate their operation, and its power of the purse—whether to limit federal spending or to command it.

Until now, our system of checks and balances, however precarious, rested on the customary willingness of each branch of government not to push its powers to their furthest textually plausible limit. Americans benefited from the resulting realm of constitutional ambiguity. Ambiguity helped to sustain what Justice Robert Jackson once called “a zone of twilight in which [the President] and Congress may have concurrent authority, or in which its distribution is uncertain.” Respect for that ambiguity at both ends of Pennsylvania Avenue helped foster a measure of self-restraint, as well as interbranch dialogue and negotiation, often with salutary results. Trump prefers to eliminate any blurry lines around executive authority and arrogate all power to himself. The idea of self-restraint must seem to him an oxymoron.

Considering these circumstances, is it an abuse of language to say that Trump’s object is “tyranny?” Don’t ask me. Ask Madison.

The post Trump’s Fusillade of Tyrannical Orders appeared first on Washington Monthly.

This article is from a cover package of essays entitled Ten New Ideas for the Democratic Party to Help the Working Class, and Itself. Find the full series here.

The impending return of aggressive right-wing presidentialism under Donald Trump is likely to take on a dangerous double character. On one side, those parts of the administrative state that can bring force to bear on Trump’s opponents and his demonized “others”—for example, immigrants and trans persons—may be eagerly deployed as swiftly and cruelly as possible. On the other, when it comes to regulatory agencies that embody progressive values—protecting workers, consumers, investors, small businesses, older Americans, really everyone—Trump has promised “the largest regulatory reduction in the history of our country, and it’s going to happen very fast.”

The hopes of Trump’s supporters to pursue both sides of this agenda depend in no small part on the quiescence of right-wing judges. Trump’s first-term engineering of a conservative Supreme Court supermajority fuels those hopes, having already curtailed the authority of federal regulatory agencies to interpret their own statutory powers. The justices have reserved that power, naturally, to themselves. They have also shown exceptional deference to Trump in hot-button cases on presidential authority. Trump’s cabinet appointees and advisers like Elon Musk and Vivek Ramaswamy aim to enlist the Court, along with a GOP-controlled Congress, in sweeping efforts to assert presidential prerogative and to enable Trump’s policy makers to gut their predecessors’ regulatory handiwork.

Any plausible strategy for checking the worst excesses of the next Trump administration will incorporate a critical role for administrative law. After all, when Trump ran in 2016, he also promised a vast campaign of deregulation. Yet as the Monthly reported in spring 2024, that effort to cut red tape was largely unsuccessful. Though Trump had pledged to remove two regulations for each one his administration added, the overall number held steady or increased slightly.  Moreover, as shown in a study by Bethany Davis Noll, litigation director for the Institute for Policy Integrity, the first Trump administration’s overall success rate in court in defending legal challenges to his agency actions was 23 percent. The win record of prior administrations was approximately 70 percent. 

Litigation, however, will not be enough to undo second-administration Trumpism. That’s in large part because conservatives have a multidecade head start in shaping the information environment and building the policy and legal infrastructure for their antiregulatory, Christian nationalist juggernaut. Over the past 50 years, they assembled a unified movement with many interlocking components—Republican presidents going back to Ronald Reagan; conservative think tanks like the Heritage Foundation; corporate money from the likes of the Koch brothers; judges and legal scholars bound by allegiance to the Federalist Society; and right-wing media like Rush Limbaugh and Fox News.

During that time, nothing of comparable ambition occurred on the left. To be sure, different sectors of the progressive coalition stood up impressive efforts to advance specific regulatory programs important to their constituencies—environmentalists fighting to strengthen clean air regulations, for instance, or labor unions mobilizing to improve workplace safety rules. But there was no coordinated effort across the coalition, and certainly no comparable funding by foundations and progressive donors, to undergird a politically bold, intellectually compelling, values-driven reinvigoration of the regulatory state. At this juncture, it therefore becomes critically important not only to attend to the impressive array of legal tools that administrative law has to offer in curbing Trump, but also to position the progressive legal strategy within a much larger campaign for hearts and minds. 

Where administrative law can be most helpful is demanding that formal government actions, such as agency regulations or adjudicative orders, meet requirements for legal authority, reasoned explanation, and factual support. Law can stop bad administrative moves that lack these qualities. Such a speed bump role is critical in facing both sides of the Trump agenda. There will be aggressive new rules and orders targeting Trump’s political opponents, disfavored business interests, and marginalized groups. Most will be subject to judicial review. As for deregulation, under the federal Administrative Procedure Act, any rescission of or amendment to a current regulation also counts as a positive “rule.” Deregulatory rules can thus be required to meet the law’s exacting demands for evidence and justification.  As I mentioned in a recent essay, it was a deregulation case that is now the canonical precedent for so-called hard-look judicial review of administrative action—that is, judicial scrutiny of agency regulation to ensure that rules are rationally based on legally and factually relevant factors and clearly explained in a manner that takes due account of significant objections and plausible alternatives. That case, Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., grew out of the Reagan administration’s attempt to withdraw the Carter administration requirement for passive restraints in new cars. The Supreme Court unanimously held the rescission invalid because the agency’s justification for repeal was inadequately explained.

And this is not ancient history. Citing the airbags case, a federal district judge in early December set aside a 2020 regulation issued by the Department of Agriculture’s Animal and Plant Health Inspection Service under Trump. According to the plaintiffs—growers of organic or otherwise non–genetically engineered crops—the deregulatory rule “effectively abandoned federal government regulation of [genetically engineered] organisms,” thus eliminating adequate safety protections and other appropriate oversight. The court faulted the APHIS for inadequately explaining its regulatory change and vacated the rule.

The Musk-Ramaswamy deregulation blueprint anticipates that Trump agencies can persuade courts that any number of relevant regulatory statutes do not authorize the initiatives of prior presidents that Trump now seeks to roll back. But as I noted recently for the Monthly, the Supreme Court specifically rejected that reasoning when it abandoned so-called Chevron deference to agency legal interpretations. In that case, Loper Bright, it wrote, “We do not call into question prior cases that relied on the Chevron framework.” Beyond that, an aggressive Trump push for deregulation is going to run into a series of inconvenient truths. The Court’s overturning of Chevron, long a pet cause for legal conservatives, now works against Trump. The burden will be on the Trump administration to defend its narrower readings of agency authorizations as the best readings of those statutes, not just permissible readings, as under Chevron.

Likewise, the major questions doctrine (MQD)—a tool eagerly embraced by the right for challenging “unheralded” and “transformative” agency initiatives based only on insufficiently specific statutory language—is now a hurdle that Trump agencies must jump. Exercises of statutory authority subject to MQD analysis may be regulatory, deregulatory, or a mix of both. For example, Trump’s ambitions for converting a civil service largely insulated from electoral politics into his personal cadre of apparatchiks will be a prime target for an MQD challenge. Civil service laws give presidents broadly worded authority to make changes to the “competitive service.” But such language was never intended to enable presidents to eviscerate a civil service system designed to promote professionalism and deemphasize political loyalty. If the MQD is deployed faithfully, courts will deny Trump power to broadly repoliticize the hiring and firing of civil service professionals absent explicit, specific statutory language conferring any such authority. 

Perhaps most importantly, virtually every significant regulation issued since 1981 has had to run a gauntlet of cost-benefit analysis at the OMB’s Office of Information and Regulatory Affairs. Trump agencies now arguing that their predecessors acted in an arbitrary and capricious manner can be required to try to persuade courts that their predecessors’ analytic handiwork should be ignored. This may prove an uphill job for Trump’s minions. According to a leading administrative law scholar, Richard Pierce, OMB cost-benefit analyses show that “the average rule has benefits that are six times greater than its costs.” According to Pierce, “that is one of the main reasons why Trump was so unsuccessful in his prior deregulatory efforts” during his first administration. 

Pierce’s insight begins to point the way to a much larger strategy for reenergizing the movement for regulation in the public interest. GOP politicians—often with Democratic acquiescence—have indulged in a myth that regulation is inevitably bad for the economy. (See “The Libertarian Who Accidentally Helped Make the Case For Regulation,” April/May/June 2018.) Yet regulations are often a boon to business, not a drag, because they set a level playing field for entrepreneurs. In the recent case involving genetically engineered organisms, for example, it was precisely the complaint of the farmers challenging deregulation that weakening USDA oversight of genetically modified plants was increasing the risk of contamination to nearby organic and other non–genetically engineered farming operations. New regulations can also create new opportunities, generating new jobs and preventing innovation-stifling abuse by incumbent companies. In these ways, well-designed regulations can actually help to promote dynamism and growth. (See “Deconstricting the Administrative State,” June/July/August 2017.)

Progressives need also to highlight how regulation can enhance freedom. Regulations protecting consumers and investors allow us to lead less anxious, more confident lives without having to devote extraordinary personal resources to protect ourselves against easily preventable risks. As Senator Elizabeth Warren, mastermind of the Consumer Financial Protection Bureau, once said in a speech: 

Done right, strong, clear regulations protect the freedom of every American. How free would you be if companies were allowed to lie to you about their businesses in order to trick you into investing your life savings in their stock? How free would you be if no one had to wash their hands before they handled your hamburger? How free would you be if companies could pass off little white pills as antibiotics, even if they weren’t?

Finally, a progressive campaign to win the support of the American people needs to emphasize how deregulation is what put the working and middle classes in peril in the first place. Financial deregulation ushered in the Great Recession and a massive transfer of wealth toward the top. Angry voters need to understand that Trump, in pushing for more deregulation, will be imposing more of what’s harmed them, not enhancing their prosperity.

It is essential that affected communities know how the regulatory state helps them, because political organizing can push back on Trumpism in ways that courts cannot. Those of Trump’s assaults on the regulatory state likely to prove most difficult to resist in court will fall within a category of what the law professors Jody Freeman and Sharon Jacobs have called “structural deregulation.” These are self-sabotaging efforts by a hostile administration to undermine governance by “eroding an agency’s staffing, leadership, resource base, expertise, and reputation—key determinants of the agency’s capacity to accomplish its statutory tasks.” Law-based resistance to self-incapacitation is more challenging because it is harder for courts to induce good action than to stop bad action. The pressure most effective at inducing energetic agency performance is more likely to come from voters who benefit from vigorous government. If voters are to play that role, they need good sources of information.

Every regulation weakened and many self-sabotaging attempts to incapacitate federal agencies will have direct adverse effects on identifiable American communities. What is needed is reporting that connects the dots between Washington shenanigans and impacts on people’s lives. A good place to start will be with Biden-era regulations that the new Republican Congress will undo via the Congressional Review Act, just as they did when Trump succeeded Barack Obama. The cost-benefit analyses supporting those rules will tell stories that local reporters and activists should translate into explanations of the real-world consequences of GOP fecklessness.

The year 2025 will not be 2017. Trump is bringing into his administration at least some key officials who will have deeper understanding of the legal instruments and management strategies through which change is leveraged in the executive branch. The right has been preparing for this moment for years. But the networks of journalists, activists, public interest groups, and others opposed to Trumpism—what Benjamin Wittes of the Brookings Institution once called “the coalition of all democratic forces”—is also better prepared. The Trump playbook is familiar. His agenda is fully on view. There will not be a shortage of pro-democracy lawyers willing and able to take on Trump 2.0.

But lawyers alone are not enough. If Trumpist triumphalism is to have its shortest possible life-span, it is necessary that pro-democracy groups, local activists, and as broad a public as possible be engaged in framing a new, more inclusive, and more just path toward actual governmental reform. An unfortunate reality facing the Biden administration and the otherwise extraordinary presidential campaign of Vice President Kamala Harris is that their arguments against Trump too often came across as merely a defense of the status quo. As strong as the U.S. economy may be, millions of Americans have come to believe that the status quo does not work for them. It is not hard to see why.

Trump, J. D. Vance, Musk, Ramaswamy, and their entourage have demonstrated no interest in good-faith deliberation about real reform grounded in the lives of most Americans. Rather, the billionaires leading this charge are seeking to further extend their economic control over the daily lives of ordinary people, so as to squeeze them for every dollar they can get. Administrative law can be a huge help in stymying this oligarchic vision. But it will be just as imperative, if not more so, to use the coming years to organize around a vision of government that can meet the challenges posed by relentless technological, economic, and social change through inclusive, collaborative, and accountable governance.

The post Reconstruct the Administrative State appeared first on Washington Monthly.

The November 20 Wall Street Journal published an essay—let’s call it the DOGE Manifesto—by Elon Musk and Vivek Ramaswamy, laying out their ambitions for cutting “the federal government down to size” with a “lean team of anti-government crusaders.” However, their 1,000 or so words of braggadocio are filled with misconceptions about law, government, and their power. Cataloging a dozen of them sheds light on the authors’ self-delusion (or how they estimate their readers’ ignorance) and where their “historic opportunity” may be most readily challenged.

To begin with, the most obvious misdirection is that DOGE, whatever it is, is not a “department” in the constitutional sense. The Constitution uses the word “department” to mean either a branch of government, such as the “judicial department,” or a “freestanding component of the executive branch, not subordinate to or contained within any other such component,” to which the law assigns duties, such as the Department of the Treasury or the Environmental Protection Agency. DOGE’s fabulists presumably chose the name to fit the Musk-preferred acronym but also to confuse the public as to their position and authority. As far as the government is concerned, DOGE has neither. Journalists should stop calling it “the department.” Call it a “project” or an “initiative.” Don’t treat it as weightier than it is.

The DOGE Manifesto’s implicit image of hordes of bureaucrats running rampant over American liberty is largely nonsense. The civil service is not a monolith comprising “millions of unelected, unappointed” mandarins who make “most government decisions.” Although the federal civil service comprises roughly two million civilians—about the same as when John F. Kennedy was president—relatively few are policymakers. According to the nonprofit Partnership for Public Service: “Defense and national security-related agencies account for nearly 71% of the entire civilian federal workforce outside of the US Postal Service.”  Across all government agencies combined, over a third of our civil servants play medical, hospital-related, dental, and public health roles or are involved in general administrative, clerical, and office service work. By comparison, the “unelected” civil servants who make final agency regulatory decisions are those the elected President appoints with the advice and consent of the elected Senate. Americans burdened by their choices may challenge them in court, where judges police the appointed civil servants to ensure their decisions align with the statutes enacted by the elected Congress. Moreover, when imposing significant rules on the public, agencies must take account of direct input from the public through a democratic “notice and comment” process. It turns out that Americans actually like this system; both social science experiments and survey evidence confirm that the public prefers policy decisions to be made by relatively independent but legally accountable technocrats and does not favor more direct presidential control of agency decision-making.

Trump’s victory was no “mandate for sweeping change.” The New York Times, among others, has reported, “Trump won the popular vote by one of the smallest margins since the 19th century” and fell short of the 50 percent mark. But just as important, the DOGE Manifesto echoes the anti-government vision of Project 2025, an agenda that registered so negatively with the public that Trump and his surrogates disavowed it. Predictions that the disavowal was a lie proved correct. But critically, a victorious campaign based on the eschewal of an extreme right-wing agenda is in no position to claim a mandate to implement that very agenda.

Contrary to the DOGE Manifesto, it is doubtful that Musk and Ramaswamy can operate indefinitely in secrecy as freelance advisors. The duo called themselves “outside volunteers, not federal officials or employees” and asserted that Trump personally named them to head the DOGE. They anticipate advising the initiative “at every step” and working with a team of government officials embedded within government agencies. These arrangements will make DOGE, once Trump is inaugurated, a “federal advisory committee” under the 1972 Federal Advisory Committee Act (FACA). FACA covers “any . . . task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as ”committee”), which is . . .established or utilized by the President. . . . in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” Each such committee must develop a public charter, conduct meetings in public, and keep minutes of its meetings. Under D.C. Circuit precedents from the Bill Clinton and George W. Bush administrations, Musk and Ramaswamy can avoid such obligations only by becoming government employees, which would be ironic, or having no vote or veto power regarding DOGE. Neither scenario seems likely—at least if Musk and Ramaswamy want to keep control over DOGE.

There is no cache of federal money to be quickly recouped on the ground that agencies are spending funds without legal authority. The Manifesto’s promise to “help end federal overspending by taking aim at . . . annual federal expenditures that are unauthorized by Congress” is a chimera. It exploits the public’s understandable ignorance of technical details about Congress’s appropriations process. The Manifesto presumably refers to appropriations that Congress passes—statutes that permit agencies to take money out of the Treasury and spend it—without following internal rules that ideally call for two rounds of legislation as part of the budget process. Specifically, if Congress’s process for funding the government always worked as provided in Congress’s internal rules, Congress would first enact for every agency a statute authorizing Congress itself to later enact appropriations for that agency. That is what Congress means by an “authorization.” Such authorizations are deliberated within the standing committees that oversee each agency’s activities, such as the Judiciary Committee for the Justice Department, the Foreign Relations Committee for the State Department, and so on. Then, before the end of the fiscal year, Congress would pass appropriations within the limits previously authorized, thus giving agencies so-called budget authority to spend funds for whatever purposes Congress designates. As far as any agency’s power to spend money is concerned, it is the appropriations acts—which emerge from the Appropriations Committees—that give agencies all the spending permission they need, whether or not there was a prior “authorization.”

An analogy helps. Imagine parents who give their teenagers an allowance every Saturday with directions on how to spend it. Call this gesture the “appropriation”; it takes funds out of the family treasury. But, in a spirit of fiscal discipline, family rules also call for the parents, grandparents, aunts, and uncles to meet each prior Tuesday and issue a statement formally granting the parents permission to give the allowances that week and perhaps setting forth detailed directions for the teenagers’ behavior. This is what Congress calls “authorization.” If, however, the parents give the teens money on a Saturday and say, “Here’s money you can spend on food, entertainment, and clothing,” that’s all the permission the teens need. If the family failed to get together on a spending plan the prior Tuesday to guide the teens further, that may reflect poorly on the family’s time management, but it does not make the kids’ spending any less “authorized.”

Contrary to Musk and Ramaswamy, recent Supreme Court opinions on statutory interpretation do not open any easy channel through which to drive agency deregulation. It is a central fact of agency life that the statutes that empower agencies are often ambiguous in describing the precise scope of what agencies can do. Agencies dealing with such laws will try to give those statutes what the agencies think is their best interpretation. Following the Supreme Court’s 1984 Chevron decision, lower courts were told to follow those agency interpretations if the statute in question was genuinely ambiguous as a legal matter and, if so, if the agency reading was reasonable. Last year’s Loper Bright decision changed the rules. The Supreme Court instructed lower courts to develop their own best reading of any legally ambiguous statute and, when the agency interpretation differs, to impose the court’s reading on the agency. But the Court also said this:

We do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. Mere reliance on Chevron cannot constitute a “‘special justification’” for overruling such a holding, because to say a precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly decided.”

In other words, the Court in Loper Bright preserved the legal validity of agency victories in earlier cases that had upheld an agency’s statutory authority. Prior reliance on Chevron does not automatically render vulnerable any previously litigated rule.

The promise of a large swath of regulations that can be expeditiously jettisoned via AI’s genius is high-tech hubris. The Major Questions Doctrine, which the Manifesto cites as a basis for sniffing out agency overreach, is insufficient to enable artificial intelligence to spot legally insupportable agency overreach. It is true that, under the MQD, an agency’s “unheralded” and “transformative expansion” of its regulatory ambitions requires exceptionally “clear congressional authorization.” But an AI-led comparison of each agency’s past regulatory output to its enabling statutes is probably a waste of time. Broad statutory language often represents Congress’s intentional and permissible assignment of discretionary authority to the agency. As the Loper Bright decision recognized, confirming a broad delegation of authority to an agency is sometimes “the best reading of a statute.” And, the Court added, “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation.” As a result, whether any statute’s language is specific enough to validate an agency’s subsequent rulemaking activity can be determined only on a “statute-by-statute basis.” Such determinations require “retail” legal analysis, not the “wholesale” deployment of a language-matching algorithm. It should also be noted that, even if agencies pause in enforcing some rules while their legality is studied, businesses are likely to follow them lest they be caught up short later.

Deregulation will not be the streamlined process predicted by the Manifesto. With or without AI, rescinding rules is time-consuming and labor-intensive. Unlike unilateral presidential orders and non-binding agency guidance, significant regulations that directly bind the public typically go through a painstaking process of published notice, public comment, and agency analysis before they become final. The same process is required for amending or repealing a rule under the federal Administrative Procedure Act. A rescission is a “rule,” subject to significant procedural requirements and potentially demanding judicial review. Indeed, the classic case establishing so-called hard-look judicial review—Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.—involved deregulation, namely, the Reagan Administration’s attempt to withdraw the Carter Administration requirement for passive restraints in new cars. The Supreme Court unanimously held the rescission invalid because the proffered justification for repeal was inadequately explained. Mandatory airbags ensued. Finally, it should be noted that the Major Questions Doctrine, which Musk and Ramaswamy hail as potential leverage to undo past regulations, will now be a hurdle the new Trump Administration will have to jump if it purports to interpret statutes in “unheralded” and “transformative” ways.

Eliminating regulations will not necessarily reduce the need for civil servants to transact the government’s business. Despite the duo’s use of business jargon (“sound industrial logic”) to make it appear that they know what they are talking about regarding staffing agencies, it is obvious they do not. Most agencies are already considerably overstretched in terms of the resources available to perform their assigned missions, and cutting rules (if it even happens) will not necessarily imply any agency will have surplus staffing. For example, reducing antipollution regulations will not reduce the number of sources of pollution in need of monitoring or the volume of potential pollutants requiring evaluation. Reducing workplace safety regulations will not reduce the number of workplaces needing inspection. Although Musk and Ramaswamy do not discuss it, the Trump agenda is also likely to increase the number of rules to be enforced in certain areas, such as immigration. If Trump persists in his ambition to reduce the size of the permanent federal workforce, what Americans are likely to see is the increasing use of private contractors, which may be no less costly and is hardly guaranteed to be more competent at either enforcing the law or delivering services to the public.

The President has no inherent impoundment authority. Musk and Ramaswamy say Trump may be able to save billions of dollars by challenging Congress’s authority to insist that appropriated funds be spent. Congress’s power of the purse is at the heart of its role in our separation of powers system. That power entails both the authority to set spending caps and the power to determine spending “floors.” As University of California-San Francisco law professor Zachary Price has recently written, the historic examples typically cited as evidence that presidents have exercised impoundment authority are almost all examples in which Congress, by statute, authorized presidents to spend less than the amounts appropriated. There is no longstanding practice of presidents defying Congress by refusing to spend what Congress has told the executive branch to pay.

Trump has no greater executive order power than any other president. Musk and Ramaswamy suggest Trump will have more executive power to roll back regulations than earlier presidents had to command regulations. In truth, few regulations emanate from presidential command, especially in peacetime, and do so only if Congress has vested regulatory authority directly in the president. Executive orders that purport to set an agency’s agenda typically ask them to develop regulatory proposals that may ultimately be issued under the legal authority of the agency head, not the president. Trump’s authority to tell agencies to “analyze,” “consider,” and “propose” will be no different from the supervisory powers the Constitution vested in earlier presidents.

Musk and Ramaswamy swear their “North Star for reform will be the U.S. Constitution.” But DOGE would undermine one of the primary reasons we have it: to establish a national government with the authority and the capacity to address the nation’s challenges. That government has been one of the key elements to American prosperity. Eight years ago, political scientists Jacob Hacker and Paul Pierson diagnosed public indifference to the productive role of government as “American Amnesia.” In truth, whatever its flaws, America’s administrative state continues to deliver essential collective goods, regulate for the protection of consumers and investors, soften the business cycle, and reduce adverse spillover effects, such as pollution, that sellers and buyers in the market do not fully bear.

In short, the DOGE recipe for a Trump-led kneecapping of the administrative state threatens much and offers little. Don’t be fooled by bravado.

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