Executive Hyperactivity

Russell Vought​ , architect of Project 2025 – the Heritage Foundation’s 900-page compendium of extreme conservative policies – and now head of the White House Office of Management and Budget, explained a couple of years ago what a new Republican administration following his plan would do. It would, he said, ‘throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years’, sloughing off ‘the scar tissue resulting from decades of bad cases and bad statesmen’. It would then ‘study carefully the words of the constitution’, and act accordingly. But the second Trump presidency privileges some parts of the constitution over others. The more than sixty executive orders made by the White House since Trump’s inauguration take their authority from Article II of the constitution, which establishes the executive branch of government and lays out the president’s powers and responsibilities.

The result isn’t a return to an 18th-century model of constitutional government. Rather, the executive orders systematically target and undermine the four principal sources of legal and political constraint on the presidency: the legislative and judicial branches of government; the civil service; civil society; and the electoral system. On the horizon is a legally unfettered behemoth capable of coercing organisations, negating rights, suppressing speech and reshaping the economy and society of the United States – all at the whim of the Oval Office. Despite ritual genuflection to the nation’s founding, there is no precedent for a constitutional shift of this magnitude in American history. A close precursor, however, can be found in the sweeping legal changes carried out by Fidesz when Viktor Orbán became prime minister of Hungary in 2010, which have enabled Orbán to fend off electoral challenges and retain a parliamentary supermajority.

In 1960, the political scientist Richard Neustadt wrote that American presidents were caught between the high expectations of the electorate and the meagre returns of an office restricted by Congress and the judiciary. Neustadt saw the president’s main tool as the ‘power to persuade’. The Trump administration turns this on its head: the two other branches of federal government, especially Congress, are seen as irrelevant because they have no power to direct or limit the president’s actions. The courts don’t seem likely to constrain the president’s powers either. In the Trumpian version of the constitution, the descriptions of Congress’s powers in Article I and of a national judiciary in Article III have in effect been deleted.

In an executive order – a directive written by the president and issued to federal government without the need for congressional approval – signed immediately after his inauguration, Trump asserted the power to alter birthright citizenship by limiting it to those with a citizen or lawful permanent resident for a parent. This power would allow Trump to render at a stroke hundreds of thousands of people non-citizens, some of them stateless. The Fourteenth Amendment of 1868 grants citizenship to all those ‘born or naturalised in the United States, and subject to the jurisdiction thereof’. But even if this phrase could be glossed to mean what Trump claims, it is Congress, not the president, to which power is assigned by the constitution to ‘establish an uniform Rule of Naturalisation’. And Congress has acted on this, repeatedly passing laws that recognise birthright citizenship. A 1952 statute, for example, states without qualification that ‘a person born in Hawaii on or after 30 April 1900, is a citizen of the United States.’ The executive order doesn’t mention this statute, or Congress’s constitutional power over citizenship. It just asserts the president’s power to dole out citizenship.

Many of Trump’s executive orders refuse to recognise laws that direct federal spending or the operation of federal departments, such as the US Agency for International Development (USAID) or the Department of Education. On the evening of 27 January, the White House issued a memorandum requiring a temporary pause at 5 p.m. the following day of all ‘federal financial assistance’, in order to prevent it being used to advance ‘Marxist equity, transgenderism and green new deal social engineering policies’. Ending $3 trillion in funding for schools, hospitals, domestic violence shelters, scientific research and many more programmes would have negated dozens of laws that mandate those payments. The ‘pause’ was brought to an end on 29 January, but not everyone has received the funds they had been awarded, and separate executive orders stopping payments for migrant services, clean energy and foreign aid are still in force. USAID has been effectively kneecapped, although Congress in 1998 ordered that it could be abolished only through the use of a specific reorganisation protocol. Needless to say, this protocol hasn’t been followed.

The text of the constitution is quite clear. Congress ‘appropriates’ funds and directs by law the way they will be disbursed; the president ‘faithfully executes’ those statutory commands. Even Justice Clarence Thomas – usually a supporter of expanding the powers of the American presidency – wrote in a Supreme Court opinion issued last year that the ‘principle of legislative supremacy over fiscal matters’ had ‘engendered little debate and created no disagreement’ at the Founding. ‘It was uncontroversial,’ Thomas went on, ‘that the powers to raise and disburse public money would reside in the legislative branch.’ When Richard Nixon claimed the authority to withhold funds earmarked for programmes he didn’t support, both Congress – in the Impoundment Control Act – and the Supreme Court repudiated his gambit. No power allows a president to decide that agencies set up by Congress can be dismantled because they help the wrong kind, or colour, of people. The refusal to pay salaries or a programme’s expenses is also an unlawful impoundment of funds.

A legislature that lacks the power to decide the way money is spent or which agencies can continue to exist is constitutionally negligible. It is also a parody of the constitutional design Vought claims to venerate. Writing in February 1788, James Madison worried that Congress ‘is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex’. In the 1780s, in other words, legislative, not executive, hyperactivity was the problem. Since Trump’s inauguration Republicans in the House and the Senate have raised little complaint about the sidelining of Congress, instead issuing proposals to rename Greenland ‘Red, White and Blueland’ (thanks, Rep. Buddy Carter). Such is Trump’s grip on the electorate in Republican primaries that no politician in a red state or district has any incentive to respond to his lawlessness.

Trump’s measures have spurred some resistance from federal courts: some impoundments have been prohibited and his recasting of citizenship has been blocked, at least temporarily. Last month Vice President J.D. Vance (Yale Law School, 2013) retweeted Adrian Vermeule, America’s leading disciple of the Nazi jurist Carl Schmitt, complaining that ‘judicial interference with legitimate acts of state … is a violation of the separation of powers.’ This underscores the feeling that the courts had better watch their manners. Trump probably doesn’t have to worry about the final stage of the federal judicial system, the Supreme Court, a body dominated by a Republican-appointed supermajority, including three of his own appointees. Last July, the six conservative justices ruled that presidents have immunity from criminal prosecution. By shielding Trump from criminal trial, this judgment facilitated his return to the White House. The Supreme Court also foreclosed any inquiry into Trump’s ineligibility as a presidential candidate on the basis that he had fomented ‘insurrection or rebellion’ and should therefore be barred by the Fourteenth Amendment. Most of the conservative justices claim to be ‘originalists’ who are faithful to the constitution’s drafters and ratifiers, but their rulings on presidential immunity and on disqualification simply ignored compelling historical and textual evidence. They are unlikely to slow Trump down.

The limits imposed on the president by Congress and the courts are supposed to be supplemented from within government by the expertise of civil servants and their upholding of the ‘Principles of Ethical Conduct’. Protection for government employees against ‘arbitrary’ dismissal comes from an 1883 statute called the Pendleton Act. An antidote to the spoils system that dominated federal government at the time, the Act also forbade ‘political assessments’, as mandatory campaign contributions from federal workers were known, and brought in civil service entrance exams. The historian Stephen Skowronek has called this a ‘recasting of the foundations of national institutional power’. One of Trump’s executive orders, repeating an effort from 2020, reclassifies many non-partisan federal jobs as political – claiming that they are ‘of a confidential, policy-determining, policy-making or policy-advocating character’ – and hence under White House control. Trump has already sacked thousands of people in the Office of Personnel and Management, the Department of Energy, the Internal Revenue Service, the Forest Service, the Department of Agriculture and other agencies. Not all of them would have had civil service protections, but many would.

Purges have particularly deleterious effects on the quality of governance when they affect internal watchdogs. Among those fired were seventeen inspectors general – departmental officials responsible for investigating corruption, ethics violations and waste. The Justice Department has announced that it will no longer enforce corruption laws against American companies operating overseas. It is a sign of Trump’s real motives that he has followed an election campaign supposedly aimed at eliminating fraud and waste by cutting these jobs and ignoring laws concerning the misuse of funds. It is a mark of the success of his ‘flood the zone’ strategy that the hypocrisy of the firings has elicited little comment.

In the absence of internal checks, the ability of the media, universities and other non-state organisations to challenge the presidential agenda becomes more important. But the executive orders also threaten to withdraw funding to NGOs or to carry out civil and criminal investigations of media organisations such as NPR, PBS and NBC. Because the federal government has extended its reach in part by channelling funds to private and state hospitals, schools, social service providers and so on, Trump’s claim to possess the power to impound funding has disproportionate significance. A threat to withdraw federal funding for biomedical research, for instance, would financially cripple many major universities (including my own, Chicago). Another executive order threatens to carry out criminal investigations of any medical facility offering puberty blockers, hormones or surgery – what it calls ‘chemical and surgical mutilation’ – to minors for violations of a federal statute banning ‘female genital mutilation’. That law plainly does not cover hormone treatments or puberty blockers. Yet hospitals in Chicago, Washington DC, New York and elsewhere have abruptly paused such care. Similarly, a threat to bring criminal prosecutions against companies with diversity programmes has resulted in a retreat by many organisations from activities that fall within the First Amendment’s free speech protections. Anticipatory compliance of this sort is an example of what Hannah Arendt called ‘the almost universal breakdown, not of personal responsibility, but of personal judgment’. The administration can still claim democratic rule even as opposing voices have helpfully silenced themselves.

Without legal and social checks on presidential authority, elections become more important as a limit on state power. But it’s hard to feel confident that future polls, especially in presidential election years, will take place on a level playing field. Between November 2020 and January 2021, Trump aggressively leveraged the powers of the presidency, including the threat of prosecutions, to pressure state officials into changing vote counts. There were no legal consequences for these crimes. Indeed, on one plausible reading of the court’s presidential immunity decision last July, Congress doesn’t have the power to criminalise such presidential malfeasance.

The new attorney general, Pam Bondi, has also indicated in an initial instruction to prosecutors that loyalty to the president trumps (the word is apt for once) fidelity to the constitution. If there is any doubt on that score, officials might look to the resignations of seven US attorneys who refused the order of the acting deputy attorney general, Emil Bove III, to dismiss a corruption case against the New York mayor, Eric Adams, so that he might devote himself to combating illegal immigration. As one of the attorneys, Hagan Scotten, wrote, ‘No system … can allow the government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.’ Officials could also consider the sacking of all the government lawyers who worked on the 6 January prosecutions as well as the prospect that the FBI agents who investigated the insurrection will be identified and ousted – the Department of Justice has asked for their names and the FBI has complied. Then there’s the pardoning of all those involved in that violence, including the leaders of the paramilitary groups the Oath Keepers and the Proud Boys.

A democratic system cannot survive without devices that stop a temporary electoral victory being transmuted into permanent rule. In the United States, Congress, the courts, the civil service and civil society make democracy feasible. When these break down, political choice is illusory.

21 February