The Republic On The Line

Impoundment

Well, we have what looks like an illegal, unconstitutional impoundment of appropriated funds.

Sam Bagenstos:

[T]hey're impounding funds in defiance of Congress's power of the purse

Josh Busby:

Either Congress has the power of appropriations or it doesn’t. Feels like American democracy will break if Trump can unilaterally decide how to spend money after it has been appropriated.

Andy Craig:

What's happening is he usurping Congress's power of the purse, the fundamental basis of representative legislative bodies and their constitutional powers in the English-speaking world since time immemorial.

Look: I started out this morning working on a nice, quiet item comparing the current round of cabinet confirmations with what happened in 2021, 2017, and before. And then I thought that it didn’t match the moment, so I shelved it and wrote one on structural reasons to expect incompetence from this gang (which I’ve mentioned before, and yes, I’ll have it soon, and yes, it’s relevant here too).

But while I was okay leaving selected freezes on specific funding to others, even though yes they were very big deals, what we’re dealing with now appears to be totally removed from the law and the Constitution. It can’t be ignored.

The OMB memo says that “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.” That’s simply not true. Federal spending is passed by Congress and signed by the president. It is law. If the president — very much including a new president — doesn’t like it, there’s another budget cycle next year, and the president can always ask (or even demand, if it does any good) that Congress to pass new laws to change things more quickly. Until then? Tough luck, Mr. President.

And to be clear: The “will of the American people” as expressed in both presidential and congressional elections is limited to which candidate they prefer of those on the ballot. Anything more is conjecture, guess, and assertion. All of which elected officials may do if they wish; indeed, healthy representation requires politicians to act with the promises they made during the election in mind. Using public support for persuasion is fine, and it may or may not work. But none of that is license for presidents to do whatever they want, law and Constitution notwithstanding.

I was on Matt Glassman’s pod last week as he was trying to sort through ways that Trump’s presidential power grab differ from what ordinary presidents do. I didn’t really say it correctly, but what I should have responded is that a certain amount of Constitutional aggressiveness is normal and even healthy, even if sometimes it means that presidents step over the line and wind up successfully asserting powers the Framers did not envision. Ambition vs. ambition and all that. Energy in the executive is good.

This is something else entirely; this is an attempt to upend the entire system. If it’s not defeated, the Constitutional order is over.

The Constitution of the United States of America does not empower an elected dictator. It is a government, as the political scientist Richard Neustadt said a long time ago, of separated institutions sharing powers. Not one based on the whims of one person.

What happens now? There will be lawsuits, and we’ll see eventually whether a partisan, ideological Supreme Court is partisan and ideological enough to swallow this. But while that process goes on, and while Democrats oppose Trump without having the votes, the real question is whether and how Republicans in Congress will react. And Republican governors, county executives, and yeah there are even some Republican mayors. Most of them will be more than happy to go along, but “most” may not be enough. Especially in Congress, where their margins are tiny. What elected Republicans do will, in turn, depend in large part on how people react if their lives are immediately damaged by these actions. Also? How those who truly love the republic react. Which might include some of those elected Republicans. Don’t laugh: We’ve seen Republicans step up to confront this lawless president before. Maybe none remain. I suspect some do.

The nation has advantages as it confronts this lawless president. I’m confident that Trump himself has no idea how many people are affected when the government stops functioning normally. I’m even fairly confident that Trump’s enablers don’t realize it either. Just as a lot of Republicans in Congress in 1995-1996, 2013, and 2018-2019 didn’t quite realize that their supporters were at least as likely to be affected by a government shutdown as anyone else.

Government shutdowns are inconveniences that restore the status quo once they end. What we’re talking about here is permanently replacing contracts and laws with whatever is needed to stay on the good side of the president and whichever officials happen to have jurisdiction over any particular government expenditure. In other words, Trump and his allies aren’t attacking a few fringe folks; they’re attacking the way the US has run itself for decades. A whole lot of people depend on it.

I’ll finish with Jamelle Bouie, who is correct:

…we have never experienced anything like an administration trying to essentially freeze the activities of the entire federal government while making a series of illegal power grabs. genuinely unclear to me what kind of response, if any, these guys are generating against them…they have opened up a multi front war against a whole host of interests and stakeholders. maybe they can win it! but maybe not.