Congressional Republicans Prefer Being a Doormat
The legislative branch has real, serious, important powers. They’ve chosen to hand them over, free of charge.
RFK Jr.’s hearing before the Senate Finance Committee is today. We’ll be covering it live, and then at 8 p.m. eastern tonight, we’ll have a special debrief for Bulwark+ members only.
We’ll repeat this pop-up series tomorrow for the Tulsi Gabbard and Kash Patel hearings. It’s a good day to join Bulwark+. The only way through is together.
Happy Wednesday.
The U.S. Congress, MIA
by William Kristol
In the United States, we have three branches of government. Or we’re supposed to have three branches of government.
We certainly do have an executive branch. Its leaders are up to no good. As Don Kettl, perhaps the dean of public administration scholars, explains in an important new article, President Trump and his apparatchiks are seeking to transform the executive branch into something almost unrecognizable in our history and into something inconsistent with our constitutional order.
You may see articles arguing that one action or another action taken by Trump resembles something that a previous administration did. That totally, completely misses what’s happening. The Trump restoration is simply unlike anything that we’ve ever seen before. It’s singularly, startlingly focused on increasing the president’s power . . .
Kettl elaborates on some of the Trump team’s particular efforts, and shows how they all add up:
It’s as if Trump has dumped the pieces of the world’s biggest jigsaw puzzle across the streets of Washington: Everyone is chasing around the individual pieces, while only the Trump team has a sense of how all the pieces fit together. . . . The Trump team already knows what they want it to look like—they’ve seen the picture on the outside of the box.
And the president’s team is acting aggressively and purposefully to bring that picture to life. They’re trying, as two sober and distinguished constitutional scholars—Adam Cox and Trevor Morrison of NYU Law School—have put it, to implement “Trump’s Dictatorial Theory of Presidential Power.”
So we clearly have an executive branch hard at work. We also have a judicial branch.
And much of what Team Trump is trying to do will end up there, in the courts. Indeed, some of the pieces of Donald Trump’s jigsaw puzzle are already there.
One hopes judges won’t shrink from upholding the Constitution against executive usurpation. But there are structural limits to what judges can do. They can only deal with the cases that are presented to them, and while they can delay or strike down executive actions, they can’t really reshape them or prevent further and similar efforts.
This is to say nothing of the fact that our current Supreme Court is not a reliable ally of the Constitution against Trump, and the federal courts in general are going to look different after being subject to Trump nominations over the next four years.
The courts can’t be expected to rebuff Trump’s attempted usurpation alone.
This brings us to our third branch, Congress.
The legislative branch has the honor of being the first branch of the government specified in the Constitution. Article I informs us that “All legislative Powers herein granted shall be vested in a Congress of the United States.”
One of the most crucial of those powers is the appropriation of funds to be expended by the executive branch, the specification of how those funds are to be used by the executive, and oversight of their use.
These core legislative powers are what Trump and his minions are seeking to usurp.
You’d think that Congress would be up in arms about its fundamental power being ripped away by another branch.
Nope.
Speaker of the House Mike Johnson says he “fully support[s]” the administration’s dramatic attempt to pause and place new conditions on, and ultimately redirect, federal grants and other funding. And when asked about the legality of the White House directing agencies not to spend funds appropriated by Congress, Rep. Tom Cole, chair of the House Appropriations Committee, explains that it is a “legitimate exercise of executive oversight” and that “appropriations is not a law, it’s the directive of Congress.”
In fact, Cole knows perfectly well that appropriations measures passed by Congress are laws. The Constitution makes it clear: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Over in the Senate, Majority Leader John Thune is more long-winded than his House counterparts but no more willing to take a stand in defense of congressional authority: “This is not unusual for an administration to pause funding and to take a hard look and scrub of how these programs are being spent and how they interact with a lot of the executive orders that the president signed.” You really have to be trying hard not to see what’s happening to say that “this is not unusual.”
Now these are of course Republicans. As Republicans in the era of Trump, they perhaps can’t be expected to stand up for the prerogatives of their branch, and to defend our Constitution against “their” president. But congressional Democrats have been strikingly half-hearted in their expressions of opposition as well.
So Congress has gone missing in action—in a dramatic and important moment when Congress needs to play a key role.
Could that change?
Possibly.
Let’s see what happens this week in Senate committee hearings on three of Trump’s least qualified Cabinet nominees. Robert F. Kennedy Jr., Tulsi Gabbard, and Kash Patel are unfit for high office and should be rejected on these grounds alone. But they’ve also expressed distinctively anti-constitutional views of how our government should work—as you can read here, and here, and here.
So defeating these nominees would be important not merely for reasons of sound policy. It would also be a step toward pushing back on Trump’s anti-constitutional usurpations.
Will Democratic senators make the case against these nominees vigorously and effectively? Will those few but key Republican senators who haven’t entirely forgotten that they do have constitutional responsibilities rise to the occasion?
Recent performance wouldn’t suggest too much confidence. But perhaps these senators will take another look at Federalist 76. There they’ll see that, discussing the Senate’s advice and consent power, Hamilton remarks that the delegation of power to a legislature implies that “there is a portion of virtue and honor among mankind which may be a reasonable foundation of confidence” in good government.
Or are virtue and honor now missing in action?
Elections Have Too Many Consequences
by Benjamin Parker
On January 6, 2021, as the mob was ransacking the Capitol, Donald Trump was bleating about how his “sacred landslide victory” had been “viciously stripped away.” In the years since, we’ve paid more attention to the Big Lie—the “viciously stripped away” part—than the “sacred landslide victory” part. It’s time to refocus.
It may seem counterintuitive, but part of Trump’s MAGA populism is an excessive regard for the sanctity of elections. It’s why it was so important to deny the legitimate and obvious results of the 2020 election. It’s why Trump insisted he had won the popular vote in 2016, when he clearly didn’t. It’s also why, way back in February 2016, he claimed that Ted Cruz had only won the Iowa Caucus because of fraud.
The appearance of democratic legitimacy is important to Trump. The force of his popularity is one of his most effective weapons against institutions that try to constrain him.
Now that Trump is president again, he’s using that projection of popularity and his demagogic will to power against the Constitution and laws of the United States. As Sam noted yesterday, the stated reason the DOJ gave for firing career prosecutors who had worked on Special Counsel Jack Smith’s team was that they couldn’t be “trusted to faithfully implement the President’s agenda.” What are laws and rules to stand in the way of what (a minority of) the American people voted for?
The same logic applies to Trump’s spate of executive orders. As law professors Adam Cox and Trevor Morrison, whom Bill mentioned above, explain at Just Security,
He appears to be asserting a roving authority to override or simply ignore binding federal legislation whenever it interferes with his policy aims . . . It is as though Trump is reprising his claim from his 2016 nomination acceptance speech that he alone can address the vital needs of the nation, but extending it to say that he alone has a mandate to suspend the law in pursuit of his goals.
The problem here isn’t just that Trump is using his cult-like following to bludgeon the structure of American government. It’s that too many institutions that should sometimes be counter-majoritarian go along with it.
During Trump’s first impeachment, former Republican Sen. Jeff Flake, hardly a Trump fan, nonetheless opposed the impeachment, saying he preferred to see Trump defeated “the old-fashioned way at the ballot box.” During Trump’s second impeachment, Sen. John Cornyn (R-Tex.) suggested Trump should be held accountable not in the House and Senate but “in the court of public opinion.”
When Colorado attempted to block Trump from the ballot under Section 3 of the Fourteenth Amendment, one of the arguments Trump made to the Supreme Court was that, even if he was disqualified from becoming president, he had to be allowed to run for president. Even if this argument has some legal merits from some angles, it’s preposterous on its face—why should people ineligible to hold office nonetheless be allowed to run for office? Politically, the question was whether the Supreme Court would enforce Section 3 of the Fourteenth Amendment. And the answer was no.
As a legal matter, Trump then used the fact of his candidacy as a shield against prosecution for January 6th, for stealing classified documents, and for his election cheating/records falsification scheme in New York. As a political matter, he used his candidacy as a way to undermine the cases against him and the rule of law itself.
And as in the Fourteenth Amendment case, the choice facing the Court in the political immunity case was between the law and Trump’s fans. Faced with the prospect of disappointing millions of voters by even allowing the possibility that Trump might face accountability for his actions and suffer electoral consequences, the Court buckled. Once again, Trump used his popularity to defeat the rule of law.
Elections have consequences, yes. But they shouldn’t have too many consequences. The presidency is not supposed to be an elective monarchy. And being popular—or being perceived as popular—shouldn’t insulate anyone from the law.
Quick Hits
WHAT A POULTRY EXCUSE: At the first press briefing of the new administration, White House Press Secretary Karoline Leavitt explained that the price of eggs remains high—and is rising—because “the Biden administration and the Department of Agriculture directed the mass killing of more than 100 million chickens, which has led to a lack of chicken supply in this country, therefore lack of egg supply, which is leading to the shortage.”
It’s not surprising that she assigned blame to the previous administration. But her accusation has us wondering: Does the current White House believe that our health inspectors should be laxer in letting avian flu—the reason flocks were culled—run rampant? A lil’ roll of the dice with our nuggets? Earlier this month, a person in Louisiana died of avian flu, indicating the risk of transmission from birds to people. But it’s not surprising to see someone from Trump world blame the cure rather than the disease.
BREAK OUT THE AIR BRUSHES: After many promises to focus on lethality, readiness, and the overall capability of the armed forces, newly installed Secretary of Defense Pete Hegseth has apparently spent some of his first week redecorating. On Trump’s first day in office, someone ordered the portrait of former Chairman of the Joint Chiefs of Staff Mark Milley removed from the series of portraits of all the chairmen. Now Hegseth has ordered a separate portrait of Milley removed from a different series depicting each chief of staff of the Army.
Hegseth also announced that he was canceling Milley’s security detail, yanking his security clearance, and ordering the acting DoD inspector general to investigate Milley.
Thanks to Hegseth’s brave, decisive leadership on paintings, the force is ready to take on any challenge asked of it.
FORK IN THE EYE: Elon MuskThe Office of Personnel Management sent a mass email to federal government employees yesterday with the subject line “Fork in the Road.” It offered, essentially, a buyout—but with a catch. Employees could resign their positions immediately by replying to the email with “resign” in the subject line and get eight months’ pay, or they could remain in their positions but maybe be fired later on.
It sounds a lot like what Elon Musk did when he bought Twitter (indeed, the title of the memo sent to government employees is the same as the one he issued to Twitter staff), and that worked out famously well for him.
We have some questions, though, like: Is this legal? Does the federal government have enough cash on hand to make the buyouts? Is typing “resign” into an email sufficient to start the paperwork process of actually terminating a federal employee? What about their benefits and pensions? Has Musk considered that many federal employees are unionized? What happens if, say, a whole office of food inspectors decide to take the buyout leaving our food supplies uninspected?
Sen. Tim Kaine (D-Va.), whose state is home to a lot of federal employees, has some doubts too.
If Musk is really looking to trim $2 trillion from the federal budget, personnel is an odd place to start. The Cato Institute’s Chris Edwards, editor of DownsizingGovernment.org, reported last year:
The largest type of [federal] spending in 2023 was transfers ($3.19 trillion), followed by aid to the states ($1.15 trillion), interest ($0.95 trillion), purchases ($0.84 trillion), and worker compensation ($0.56 trillion). . . .
The latter two types of spending—purchases and compensation—are the production part of the budget. These activities declined from 54 percent of noninterest spending in 1970 to 24 percent in 2023. This spending includes the active services produced by the government, such as national defense and the national park system.
One last question: Is this what people meant when they said the government should be run like a business?
Cheap Shots
I'm totally certain that Donald Trump and Elon Musk, two guys known for breaking or attempting to break virtually every agreement they have ever made, will actually give federal employees who voluntarily resign their full severance and not try to screw them over.
This statement by J.D. Vance has basically lived rent-free in my head since he said it.
“I think that what Trump should do, like if I was giving him one piece of advice, fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people, and when the courts, because you will get taken to court, and then when the courts stop you, stand before the country like Andrew Jackson did and say the Chief Justice has made his ruling, now let him enforce it," Vance previously said.
This is the Rubicon we’re heading towards.