My unvarnished and dispassionate take on Trump’s assertion of executive authority
Many of you are aware of my service in state government in the executive branch and have asked me about the recent controversy surrounding President Donald Trump’s broad exercise of executive power in Washington, D.C. So, while this is not exactly a healthcare blog per se, the controversy certainly impacts coverage in the nation. We are about a month into Trump 47, so it is a good time to opine on this. As such, I will give you my unvarnished and hopefully dispassionate view of things. Should we feel sympathy for what the executive is trying to do? Is Donald Trump going too far?
A little background on me
I served in state government in Connecticut from 1995 to 2005. I was a Republican executive appointee and eventually became the Deputy Management Secretary/Deputy Budget Director of the state and then the Management Secretary/Budget Director. I served about 7.5 years in these two appointed posts. Connecticut is a small state, so a great deal of the authority and power is vested at the state level. And the Office of Policy and Management (OPM) (as my office was called) held great sway over policy, management, and budget in state government at the direction of the governor. In rough measure, it is like the federal Office of Management and Budget (OMB). While my boss was in office, we saw either a split legislature or one controlled by Democrats.
My tenure was not without some of the same controversies we see today over the last few weeks, especially during lean budget times when state budgets can go out of balance. We had executive-exercised spending cutbacks, layoffs, and showdowns with the legislative branch. At one point, we as the executive branch ran the government by executive order because of the lack of a budget in place after vetoes of the spending and revenue plan. We unilaterally set expenditure levels at minimum levels. It was a gambit to force the legislature to make reductions to spending levels to keep outlays in line with anticipated revenues. At the time, the Democratic attorney general did not challenge the executive branch’s authority to what we did. This ultimately led to a compromise budget being passed.
What does the U.S. Constitution say?
We often talk about three co-equal branches of government, separation of powers, and checks and balances. But is that what the founders intended? Actually no. They did want separation of powers and checks and balances. They also did not want to concentrate power in one branch so as to avoid the tyranny they were under with Britain.
But they did not necessarily want co-equal branches of government. The founders used the terminology co-equal to describe the relationship between states and the federal government as well as between the House and Senate.
In truth, the founders intended and wanted the legislative branch (Congress) to have more power than the other branches. They gave the Congress the power of taxing and spending. They said that the legislative branch represented the people and would most directly represent their will. In some ways, we can interpret the founders’ views on how powerful the three branches should be by looking at the Constitution itself. Article 1 is the legislative. Article 2 is the executive. Article 3 is the judicial.
At the same, time, this is not to say that the founders did not want a reasonably powerful executive. After the failure of the Articles of Confederation, it was clear that a reasonably powerful executive was important. In Federalist No. 70, Alexander Hamilton makes the case for a strong, unitary, and singular president. Hamilton makes the case that a strong executive is necessary for a country’s survival.
What has happened with the branches?
Over the years, three things happened. First, Congress increasingly moved some of its power to the executive branch and deliberately empowered it. Second, the modern age brought powerful personalities that asserted executive authority. Third, the complexities of governing led to the creation and growth of executive agencies and bureaucracy to implement laws and administer government.
Trump’s arguments on executive authority
In the past month or so, Trump has argued a few things. He believes that the executive has or must have more power than has been exercised in the past. He sees this in the Constitution. As well, he has argued that the bureaucracies that emerged in agencies have effectively co-opted power from the executive (president) and even Congress. He argues that no elected officials are truly in control.
Concept of unitary executive
In articulating his second point on the bureaucracy, Trump argues that the founders intended to create what is known as a unitary executive and that the Constitution vests in him and him alone executive authority. Trump effectively argues that delegation of authority by Congress (or the executive themselves) to vast swaths of the bureaucracy violates the unitary executive concept. Trump argues he and the immediate White House should have sole authority to implement laws, conduct government, and hire and fire.
Again, given complexity and the need for expertise, over the years strong agencies were built and bureaucracies established. Congress vests power in these agencies to carry out laws it passes. A civil service emerged over time to prioritize competence and accountability rather than political patronage. While agency heads generally are nominated by the president, with some being confirmed by the Senate,Trump would argue too much power has been vested in places over which he does not have direct control. He would argue the civil service has neither promoted competence nor accountability.
What has Trump done so far?
Trump has expanded the executive’s footprint in many ways:
- Created the Department of Government Efficiency (DOGE) commission that is looking at spending, hiring, and more in each agency.
- Instituted a wide-ranging domestic and foreign spending freeze, arguing it was needed to review fraud, waste, and abuse and ensure efficient operation of government given the debt crisis and deficit.
- Instituted layoffs and terminations, put in place a job buyout, ordered some agencies closed (e.g., the Agency for International Development), and removed certain individuals possibly in violation of civil service and other requirements.
- Ordered the 2 million civilian workforce to report back to work by limiting or eliminating most work-from-home provisions.
- Issued far-ranging executive orders that change policy and fundamentally shift focuses in the executive branch.
- Instituted a regulatory freeze and ordered so-called independent agencies to run proposals by the White House.
- Pulled out of international organizations, including the World Health Organization (WHO).
Courts have weighed in with injunctions in some cases but allowed the executive to proceed in others. For example, the freeze in spending was enjoined, although there is evidence that Trump has ignored the rulings to some degree. In the area of layoffs and the job buyout, courts have given more deference.
In the end, Trump is seeking to remake the executive branch by hobbling the bureaucracy, gain greater control over agencies, centralize policymaking within the White House, and massively streamline the workforce.
What is the history of executive action?
Presidents of both parties have usually asserted the role of the executive over the legislative. That has occurred whether the executive’s party controlled Congress or not. But at least two presidents are worth taking a special look at.
FDR
Franklin Delano Roosevelt famously exerted his executive power at the time of the Great Depression and at least initially a Democratic Congress played a role in ceding a great deal of its power, especially with the New Deal legislation. If the executive is vested with broad foreign policy oversight in the Constitution, the FDR years solidified the executive’s role over domestic and economic affairs. It also created the rise of a government bureaucracy, although FDR continually pushed back on its authority and independence. In many ways, FDR created the modern presidency. Like, Trump, FDR ushered through a series of executive orders and urged Congress to pass far-reaching legislation that empowered the executive branch.
It is ironic, but FDR was asserting executive power by taking on vast economic and later war-time powers to grow government, as opposed to what Trump is doing now. In truth, FDR’s efforts to assert executive control met with a number of defeats in court. In significant cases, the courts struck his expanded New Deal authority more than it did not. FDR actually proposed some major court reforms (they failed) and attacked the courts during his presidency. Over time, Congress did begin to roll back some on FDR’s and future presidents’ executive power.
Another interesting feature mirroring Trump is that FDR concentrated a great deal of power within the White House and had his immediate aides direct a great deal of policy. He stripped power from agencies, including so-called independent ones. He famously sought to remove officials.
Richard Nixon
Richard Nixon never had his party in control of any house of Congress. As such he often battled with Congress and therefore asserted executive power. Nixon had streamlining and efficiency as major agenda items, but Democrats controlling Congress had no inclinations to work with him. Nixon also had a dream of lessening the power of the federal bureaucracy.
Nixon’s expansion of executive authority came in a few ways, modeled in some ways after Eisenhower, under whom he served as Vice President. Nixon also was an adherent of the unitary executive. Some things he did to promote executive power included:
- Signing numerous executive orders each year of his presidency.
- Refusing to spend funds that Congress appropriated.
- Claiming executive privilege so as not to disclosure information or to stop executive agency heads from testifying before Congress.
- Reorganizing the executive branch and unilaterally broadening the authority of cabinet positions.
- Seeking far-reaching authority over the Vietnam War.
On the issue of spending funds, Nixon used what he viewed as his executive authority to impound (not spend) dollars appropriated by Congress. Multiple courts, including the Supreme Court, rejected Nixon’s repeated attempts to spend less than Congress had provided and ruled impoundments unallowable. In time, Congress passed the Impoundment Control Act of 1973, which clearly spelled out the process the president had to follow if he or she were to impound funds, which spells out Congress’ authority to review and approve, reject, or modify what the president has submitted. Similarly, the Line Item Veto Act of 1996, which amended the Impoundment Act, was struck by the high court as it essentially delegates a legislative prerogative to the executive.
Ultimately, Nixon’s executive power grab came to and end with the Watergate scandal.
My views
I am not unsympathetic to Trump’s views that the executive should have more authority over spending and policy and that bureaucracies have been ceded or taken too much power. There also is no doubt in my mind that Congress and the executive branch have done a poor job over the last several decades of ensuring efficient use of tax dollars. This is regardless of party. So, Trump’s view that things need to change due to rising debt and deficits is certainly reasonable. Why should an executive be forever constrained by the poor decisions of prior presidents and Congress in terms of policy and spending? Is prior precedent an excuse for the potential bankruptcy of government and the economy?
A case can be made that the executive should have some authority to restrict spending, perhaps tied to exigencies in government. Connecticut had a closely crafted rescission authority the governor could enact tied to budget imbalances or if the spending cap might be impinged. At the federal level, the precedent has already been set when Congress authorizes spending “up to” certain levels, which inherently gives the executive some discretion. More important, the executive is also tasked with the efficient delivery of services, which should lead to the ability for a president or governor to scrutinize spending for efficiency and legality.
I, too, know as well as anyone the power of the bureaucracy. Bureaucracies, urged on by big labor and collective bargaining, have created an all-powerful fourth branch of government that sets policy and decides often what budget dollars are spent on. They do not always or often tie to elected officials’ or the public’s priorities. Again, it would seem both the elected executive’s and legislature’s authority have been co-opted by federal and state agencies and bureaucracies. Reining in what Trump would call the deep state is not an unreasonable expectation.
But here is where I begin to deviate from Trump’s views: it is all about the approach and excess:
- Is there any doubt that the DOGE approach to spending freezes and examination as well as work force downsizing is too rapid and scattershot?
- There is little question in my mind that we will see negative impacts on real services – here and abroad – due to the blunt-force-trauma approach to spending reductions and workforce reductions. Perhaps a scalpel approach is too refined, but is there a middle ground that could be used?
- Shouldn’t Trump have better stated his case on government excess and teamed up with the legislative branch more, which he controls, to jointly examine reductions?
- While the debt is increasing each day, wouldn’t a better strategy have been to streamline, end waste, and reconstitute the workforce for FFY 2026 in October?
- And there also is the clear perception that much of this is based on Trump’s efforts for revenge on political opponents and the deep state.
- Last, the current approach could serve to further alienate moderates in the Republican caucuses who are already concerned about deep spending cuts.
What will happen?
Admiteddly, the congressional GOP is largely in line with Trump. While spending cuts in the budget reconciliation process may be less than desired due to moderating forces, the GOP has indeed ceded its legislative authority to Trump, much as occurred with Democrats with FDR. Congressional Democrats and states have led and will continue to lead the fight on Trump’s desire to increase executive power.
As we have seen already, courts have increasingly been open to finding that executive agencies have far too much power. Recent rulings from the Supreme Court show this. One, the overturning of the long-held Chevron Doctrine precedent, informs a great deal. The doctrine laid out by the Supreme Court in 1984 held that executive agencies had the reasonable ability to set policy in rules and regulations when Congress had not clearly laid out certain policy or process. A recent Supreme Court decision stated that that was an unreasonable delegation. The justices argued that either Congress should better prescribe policy or the judiciary will make such interpretations. I suspect that the court’s suspicion of executive agency or bureaucratic authority could very well mean Trump wins some issues in his battles over agency and bureaycratic authority.
On the issue of a unitary executive, the courts similarly have been more and more open to issues related to presidential power, empowering the executive to increasingly set policy at the expense of the bureaucracy and to some degree the legislative branch. Trump could win here to some degree too. The unitary argument could mean the further striking of additional statutes. This could come in areas of workforce layoffs, hiring and firing authority, and some latitude on the proper administration of government (timing, process, and stewardship) and the spending an executive implements.
Where Trump is likely to lose is on issues that are clearly delegated to the legislative branch. Trump is expected to push the limits of freezing spending and go for impoundment. On impoundment, Trump will seek to argue that presidents historically exercised such authority even before its striking in the Nixon era. A group of GOP lawmakers are seeking to expunge the 1974 impoundment law, arguing it acts as a barrier to the proper exercise of inherent impoundment power by an executive. But the high court has spoken here already and even a more conservative high court is unlikely to side with Trump here given the number of strict constructionists on the court.
Thus, Trump will likely win more of his arguments to exercise broader executive power rather than less. But it will not be absolute. I think both Congress and the Supreme Court will act as checks in a number of cases. Some civil service provisions will impact decisions as well.
It is also true that Trump will wait out court decisions he doesn’t like and will get the GOP Congress to implement his actions by budget and law anyway. This could come in the form of spending reductions, government reorganization, and workforce decisions. This would amount to the legislature reasserting its authority, but at the same time means the executive (Trump) asserted some profound soft power to get his way. This is consumate Donald Trump.
#trump #congress #spending #impoundment #healthcare
— Marc S. Ryan
