Energy in the Executive?

Trump is picking up---and falling down---right where he left off

1. The nomination is dead. The scheme to adjourn the Senate against its will is dead. And Donald Trump’s honeymoon magic on the Hill is dead. That’s the basic balance sheet of Trump’s miscalculation in nominating Matt Gaetz for Attorney General.¹ Perhaps the only real surprise is that they pulled the plug as fast as they did.

2. If there’s one thing Members of Congress don’t like, it’s getting blindsided. And the Gaetz nomination definitely blindsided them. Senators like to be consulted ahead of time about nominations. When stuff just happens without warning, it forecloses the option to deal with it in private. You can’t influence the decisions, and you can’t kill bad decisions. As I wrote last week:

   In a normal process, [nominations] fail during the executive vetting, because Senators are looped into the WH/transition discussions, and veto people at that stage, before they are ever nominated. If unacceptable candidate do get nominated, they are usually buried through non-action or defeated in committee, to reduce the party tension/embarrassment and/or leave fewer fingerprints.

   Make no mistake: the Senate GOP is glad Gaetz is gone. He’s unqualified. He’s an ethics nightmare. He’s not at all serious about governance. And everyone personally hates him, because he’s an asshole. But I’m sure more than a few Senators are good and pissed at Trump about how this went down, since it could have been a big nothing-burger if the president-elect had just floated the idea and tried to socialize it on the Hill before announcing anything.

3. One of Trump’s underrated political weaknesses is blindsiding allies. He doesn’t seem to think long-term about how destructive it is on political relationships to have people stick their neck out to back you, only to see you turn around and undercut you. He celebrated a House tax bill in May 2017 in the Rose Garden, then turned around and described it as “mean” a month later. He called GOP Members cowards for not supporting higher age limits for guns in February 2018; by March he had reversed course and was himself against it. He flip-flopped on TikTok, backing and then scuttling a GOP bill to regulate it. He bailed on the GOP Senate immigration compromise. And 100 other examples.

   

   Former Speaker McCarthy. What’s the German word for Schadenfreude?

4. None of this is all that surprising. It’s always been a myth that Trump has dominated the Senate on nominations; he withdrew four cabinet-level nominations in his first term, a slew of lower level appointments were sunk, and judicial nominees were voted down in committee. He smartly gave White House jobs to people like Bannon and Miller who were unconfirmable. His perfect record on the floor was always nonsense; failures on the floor are just extremely rare. Trump had more flubs than previous presidents, largely because he nominated bad candidates and probably didn’t take enough Senate advice prior to the nominations. Whatever your breathless crazy liberal relatives might say, the United States Senate is rarely going to play presidential lap dog in the face of a truly embarrassing nomination.

5. Even less surprising is that the Senate decided it was going to skip the recess appointment schemes and keep its confirmation power. No one loves analyzing this sort of stuff and doing some Congress LARPing more than me, but Trump does a lot more pushing on the edge-cases of the Constitution than actually crashing through the walls.

6. I won’t pretend I know what is going to happen on the rest of the nominations, but I have some thoughts. The prediction markets for the confirmation of RFK, Gabbard, and Hegseth all fell 3-5% on the Gaetz news, which makes sense from a Bayesian point of view, because it was evidence the Senate was not simply going to confirm any and all Trump picks. And Gaetz went down without any individual Senator expending any political capital. And with Gaetz gone, media attention can turn to the other nominees and their scandals.

   But there are countervailing forces too. A same party Senate just isn’t going to sink too many high-profile picks of their president-elect. Every time someone goes down, the others get some sort of marginal benefit. And my hunch is that benefit increases after each failure. Furthermore, now that the Senate GOP has Stood Up To Trump, they don’t have that hanging over them.

7. My guess is we get a maximum of one more high-profile withdrawal in this round. Gabbard should make it. Maybe Hegseth fails if the ethics scandal sticks or gets worse? Maybe RFK becomes seen as just too left-wing kooky? But I think the idea that all three of them would fail is absolutely crazy. And I think Pam Bondi will sail through in any case, but especially now that she is benefitting from some sort of “she’s not Gaetz” bonus.

8. And, for the record, Gaetz can’t come back to the 118th House—no backsies on House resignations—but I’m not sure if he legally gave up his seat for the 119th. UPDATE: Gaetz has announced he will not return for the 119th.

9. But the main story here for me is that Trump really isn’t good at party politics or at running a political operation. It’s why the White House was a mess in his first term. It’s why he had a terrible time dealing with the bureaucracy. It’s why Congress ignored his first-term agenda. He doesn’t care at all about the GOP qua GOP, he’s never in the mindset of compromise in order to win marginal policy gains, and he burns goodwill with everything he touches. He can be a wrecking ball, he often commands a lot of personal loyalty, and his chaos empowers a lot freelancers. But he really doesn’t seem to have any skill in policymaking.

10. And that’s why he’s always looking for innovative shortcuts around the regular political work of building coalitions and convincing other governing actors to help you. Why else would you be floating crazy recess appointment schemes when your party controls the Senate with 53 votes and they are allegedly either very loyal or very terrified of you? And why would you stock your administration with acting appointments rather than just get them confirmed? A better/smarter idea might be to work with those 53 people and sail through a cabinet full of solid nominees. But that’s not Trump.

11. The DOGE update is that they are suggesting the Impoundment Control Act is unconstitutional. This is probably another case of Trump pushing on walls he never intends to break down, but this is potentially the biggest executive threat to the separation of powers of them all.

12. First, a quick explainer: under the Constitution, only Congress can appropriate money, it has to be done by law. And Congress can condition those appropriations by purpose, amount, and time. So Congress can appropriate $1 million, for one year, for school nutrition programs. Impoundment is the idea that the president can refuse to spend the appropriated money. So if the president didn’t like the idea of $1 million for school nutrition, he could just refuse to spend it. Congress passed a law in 1974 that precludes the president from doing this. The Act provides a mechanism for the president to propose rescission of funds and for him to delay the expenditure of funds, but it bars direct impoundment.

13. Now, the executive branch has leftover money all the time. Throughout American history, Congress has provided money for things and the executive branch has found ways to do those things for cheaper. You can read all about this in Mark Paoletta’s defense of impoundment, which is a thorough review of lots of alleged non-spending by the executive branch. But in my view, the Paoletta argument seriously misses the mark; it seems to confuse the practice of Congress allowing the executive to not spend all the money with the right of the president to choose to not spend all the money. No one is saying the executive branch necessarily has to spend all the money; instead, my view is that Congress can, by law, mandate that all the money be spent.

14. This is extremely important, because if the president can choose to not spend money that Congress has appropriated and directly demanded be spent, then the president can essentially cancel any program Congress sets up that requires funding. That’s an immense amount of power. And in my view it is a violation of the Take Care clause of the Constitution, which requires the president to faithfully execute the law. It seems totally illogical that the president could legally refuse to spend any money appropriated for the Department of Justice, simply because he decided we shouldn’t have a federal criminal code, or out of spite because Congress wouldn’t go along with his reform program.

    

    Cutting large amounts of federal programs can get politically tricky very quickly

15. I noted last week that Trump’s theory of the presidency feels a lot like 16th or 17th century England, where unlimited royal power was weakly constrained by parliament. Impoundment fits directly into this vision. In fact, the very idea of appropriations was developing during this period of English history. Prior to the English Civil War, parliament general granted the King supply, which was basically lump-sums of money (or tax authority) that the monarchy could use as it saw fit, or not use. The development of the limitations on how that money could be spent (limitations on time, purpose, and amount) were the essence of a new term—appropriation—and a new conception of parliamentary control over government expenditures.

16. Impoundment largely reduces appropriation to supply. If the president has a constitutional right to impound appropriations, Congress will be left with something that looks a lot more like the supply power, a mere negative right to withhold money requested from the executive branch. The power of the purse is the last and strongest power of Congress. The ability to appropriate will be greatly diminished, as the executive will have discretion to ignore any monies it doesn’t want spent, and the president will be able to leverage that reality to bargain for appropriations Congress would not otherwise want to provide. How does Congress ever negotiate on spending if the president has a post-enactment veto over all of it?

17. All of this is better explained—both the mechanics and the English history—by Josh Chafetz. Follow him on Twitter and BlueSky. I particularly recommend his wonderful book Congress’s Constitution.

18. In the wider view, an executive assault on impoundment control is just another escalation in an ongoing battle over the appropriations power. Presidents have routinely used their inherent discretion under law to stretch the statutory authority granted to them by Congress. But the last three presidents have really taken it to 11 on the appropriations front. Obama tried to spend funds for the ACA that Congress specifically refused to appropriate. Trump found a clever/underhanded way to steer military funding to his border wall, which Congress has specifically declined to fund. And Biden put in place a half-trillion dollar student loan repayment program that had no chance of passing Congress. None of this is good. And impoundment is worse.

19. I’ll confess I really have no idea what people mean when they say they want to eliminate the Department of Education. Actually cut all of the programs they run (most of the money is student loans and grants to state/local public schools)? Eliminate the department and rearrange the programs into other departments of the federal government? Keep the money flowing but just make it bock grants to the states? I can’t get a straight answer from anybody on this one.

20. DOGE is also highlighting “unauthorized programs” and this is mostly nonsense. Musk and company want to make you think that we are paying for things that nobody wants—$516 billion for programs whose authorization previously expired!—but that’s not at all how this works. Congress supports programs in two ways. First, they provide authorizations that detail the purpose of a program, the tools available, and any policy directions. These authorizations are often for a limited period of time, and often they expire before Congress has a chance (or the will) to update them. Second, they provide money for those programs, usually on an annual basis. If the authorization lapses, Congress can still provide money for the program, and that annual appropriation is evidence (legal and political) that Congress wants the program to continue.

21. Now look. I’m a former appropriations staffer. I wish the authorizing committees in the House and Senate would do their damn jobs and reauthorize the expired programs. It’s better for the agencies, it’s better for the appropriators, it’s better for the public. But the fact that they are lazy does not mean that there are all these programs out there just on auto-pilot funding wasting money with no one watching them. The appropriators are scrubbing the annual budgets and doing budgetary oversight. The committees with jurisdiction over the expired authorizations are still conducting oversight and managing the programs. You just can’t look at the total number of dollars in the expired authorizations and say “here’s an obvious place to save money, no one cares and it’s all being wasted.” The single biggest expired authorization is Veterans’ Health!

22. A general reminder that in the first 100 days of an administration, not a lot will be passing Congress of major importance. There’s this myth dating back to FDR’s first term in 1933 that a lot of legislation happens in the first 100 days of a presidency; the term “first 100 days” comes from the pile of anti-depression legislation passed in FDR’s first months in office. And it has become something of a measuring stick for all presidents since. But almost nothing gets through Congress in the first 100 days. Since 1933, the only major laws I can find enacted in the first 100 days are the Obama stimulus in 2009, and the Biden American Rescue Plan in 2021. And those were both responses to crises. Congress will be working on things in January/February/March, but the safe bet is that there won’t be any policy outcomes until later in the spring or the summer.

    

    Even the reconciliation process—the only real way to do party-line legislating in Congress—take a long time in prctice

23. I really like the writing of Gabe Fleisher, who just graduated from Georgetown and already feels like a seasoned journalist, because he’s been writing a politics newsletter for like a decade. Seriously. Here he is writing about the policy agenda for Trump. And here he is doing my favorite of his recurring columns—policy stuff that happened this week while you thought nothing was happening.

24. The real early action will be in the executive branch, where president Trump will have the opportunity (as all presidents do) to reverse some executive orders from the previous administration on Day 1, and perhaps do some other things big executive action, which might include restructuring the bureaucracy (the so-called Schedule F plan), or starting a deportation policy. Although there’s an impulse to do things as quick as possible, even executive orders take time if you want to do them write. You can write them at the White House without agency input, but that turns into the shitshow that was the Trump Travel Ban from January of 2027.

25. If you want to get broad executive policy correct, you have to actually figure out your policy. And the best way to do this is to bring in the agency folks who know what they are talking about, bring in the outside stakeholders who know what they are talking about, bring in a lot of smart political strategists who know what they are talking about, consult with Congress and lawyers about the role of the legislature and judiciary in the policy, and you get all these folks to sit around a table and hash the damn thing out, and narrow down the decisions and hope the president and the agency heads make smart choices from the menu of options and that all the traps have been run. It’s not rocket science, but it also takes time.

26. If you don’t do these things, you often end up with bad policy and with partners you have to work with who weren’t consulted, don’t like the choices you made, think you’re an idiot, and don’t want to help you execute it. This is the story of the travel ban: they wrote it at the white house because they didn’t want to bring in agency folks who were going to push back on the policy and/or leak it all to the press, so they had no clue what they were doing at a technical level. They made dumb mistakes, like having it go into effect immediately, which stranded people at airports and resulted in TSA agents getting screamed at by Congressmen and their superiors shirking responsibility because they had nothing to do with the policy. “Call the White House, it’s their policy.”

27. And this is what Hamilton meant when he said “energy in the executive” is vital to good government. Congress can make all the laws it wants and provide all the money it wants, but at the end of the day governance falls on the executives. The mayors, the governors, the agency-heads, the secretaries, and the presidents. Congress cannot tell you how to distribute a vaccine to 300 million people. Someone has to solve that problem. That’s the executive job. And it requires skilled politicians who are good at managing, good at bargaining and judgement, and good at accumulating and using power. That’s the energy that creates good governance, and no amount of good legislating can replace it.

1. Stolen from the last line of my favorite book, David Potter’s The Impending Crisis, by far the single best political history of the late antebellum era. “Slavery was dead. Secession was dead. And 600,000 men were dead. That was the basic balance sheet of the sectional conflict.”