He's baaack: 34 Friday Thoughts

We're negative 66 days into the Trump administration, and I'm already tired

1. I honestly forgot how much time I spent on the phone during the first Trump administration explaining institutional features of government. That all came roaring back this week, as reporters and Hill folks and DC types and my family and the internet all peppered me with questions about creating “departments” and transition agreements and recess appointments and—Jesus Tapdancing Christ—proroguing Congress.

2. Part of this is that Trump—for better and worse, but mostly worse—is constantly testing the limits of institutional and norm-based constraints on raw power. A lot of people argue that Trump doesn’t really believe in the rule of law—and I think that’s probably right—but the much more common issue is that Trump more than any other president I’ve ever seen or studied exploits the very nature of written law itself. No constitutional provision or statute can be written precisely enough to cover all cases and necessarily has to be filled in by norms, customs, and a shared belief in the larger system. If you are willing to disregard all of those things, you can inevitably find a lot of cracks in the legal structure.

3. There’s no solution to this. The whole raison d’être of executive authority is rooted in the principle that legislation is inherently vague, discretion under law is required to govern, and good governance comes from skilled executives using that discretion to make good decisions. This what Hamilton meant by energy in the executive. Congress can authorize vaccine development and pay for it no sweat, but somebody has to figure the fuck out how you make the vaccine and successfully distribute it to 300 million people. This is normal and good and the way every functioning rule-of-law government works. Trump has simply turned it to 11.

4. It reminds me of a twist on the classic union tactic of work-to-rule, in which union members do their jobs precisely as written in their contracts and nothing more. This inevitably causes workplace problems and often complete breakdowns, since no contract can cover everything and much of employment is based on a mutual understanding between labor and management of dozens of different baseline norms and behaviors and expectations that are implicit rather than stated. Ditto with Trump. If someone is purposefully going to strip everything away but the literal letter of the law, it turns out there’s just a lot more discretion than anyone actually wanted.

5. I can’t say it’s not fun, in some sense; we’re basically living out every political scientists’ best 2am dorm-room stoner what-if bull session. What if the president just adjourned Congress for a year and raised new revenue through statutory tariff authority and basically ruled liked Charles I? And from a professional point of view I am certainly living in Interesting Times with plenty of work. But beyond any particularly worry about Trump, any durable shift toward textual legalistic hardball is an asymmetric problem in our separation of powers system. It favors the executive and creates the trappings for a republic that looks a lot more like 17th century England—unlimited royal power constrained weakly by parliament—than a republic built on legislative supremacy and executive implementation.

6. Enough political theory.

7. I keep getting questions about what is going to happen in the Trump administration on the policy side, and I can’t recommend this Jonathan Bernstein piece enough as a way to think it through. It’s not rocket science. Easy stuff is more likely than hard stuff. Simple stuff is more likely than complex stuff. Executive stuff is more likely than legislative stuff. Popular stuff is more likely than unpopular stuff. Things the GOP factions all agree on are more likely than things just Trump wants. Legal stuff is more likely than illegal stuff. Put it all together and you can assess any individual policy pretty well from the hip. ACA is not getting replaced. But a corporate tax cut looks like a good bet! And bookmark all of Jonathan’s writing, I can’t think of anyone who more plainly explains generic power dynamics in politics. Indispensable.

8. One reason people like Matt Gaetz are unfit for executive branch posts is that governance actually matters. Every barstool conservative and their brother seems to be under the impression that you can fix everything in two sentences if you just have the will to do it, but it’s really not true. Problems are hard. And the basic unseriousness of Gaetz and the rest of the meme-bros is a self-fulfilling prophecy; if you put fundamentally unserious people in charge of doing things, those things don’t work. Everyone intuitively knows this in their own life. It’s also true in government. Sound bites are great for campaigns, but at some point you actually have to figure stuff out.

9. If that sounds like liberal blather, I assure you it’s not. Conservatives want to do stuff too! A puzzle I’m proposing to my class this week: how do you actually deport millions of people? Like, what’s the plan? The executive branch doesn’t need any new authorities to do it, and more money might help but they have plenty of that too. We don’t need new laws. What we need is a plan. And this is why you need serious people. “Go round them up” is Matt Gaetz standing on the Capitol steps. It isn’t a plan.

10. What *is* the plan for deporting people? As Matt Yglesias details, Obama’s successfully strategy was to build partnerships with local law enforcement to have them turn over illegal immigrants who have been arrested. This (1) made illegal immigrants easy to find without raiding houses and businesses; (2) aimed at the most problematic cases; (3) was popular, because criminals are less sympathetic than, say, random kids; and (4) got the cooperation of local justice systems because it took cases off their hands and lowered their workload; and (5) didn’t cost that much. That’s a plan. Maybe Trump has a better one! But the point is you need a plan and you need someone to execute it. The partnerships with local justice systems don’t just happen because you want them to. You have to actually do it. Like, get on the phone and convince them and write MOUs and sign them.

    

    The world-record holder for 21st century deportations was Barack Obama

11. Ok. Recess appointments. Everyone is talking about Trump the Tyrant in regard to these things, but lets start with some level-setting. The last time I had to put my Whig jacket on and tell a president to get bent over this issue, it was Obama who was trying to shred Senate power and common sense. And holy crap do I hate the DOJ Office of Legal Counsel. But it’s important to place Trump’s proposed action—which are remarkable and turn things up to 11—in proper context. This is an old fight lots of presidents have carried out against Congress. Trump didn’t invent it.

12. Look, here’s the deal. Recess appointments made sense in the 18th and 19th century. Congress wasn’t in session most of the year. It was just the president running the government, and if a vacancy arose in a key post, of course he needed to be able to fill it until Congress got back an could confirm someone. Thus the constitutional provision.

13. President have been exploiting this ever since, by making appointments during short congressional recesses to put in place people who could not otherwise be confirmed; in the modern era with Congress in session basically full-time, the entire thing has become a farce from the historical point of view—it is plainly not a national emergency if Congress goes on recess for two weeks and a cabinet position comes open; it takes longer than two weeks to fill those slots when Congress is in session!—and so the debate over whether the recess needs to be 3 days or 10 days or 21 days or whatever in order to trigger the clause is completely disconnected from any intention of the Founders or normative design. It’s just power politics between POTUS, the Senate, and the Court. Fine.

14. In 2014, everything sort of got settled. The Court ruled that a 3-day recess was too short and that a 10-day recess was legit. Congress responded by literally never taking more than 3-day recess since then. Even when they leave for six weeks in the summer, they still hold pro forma sessions every three days. The entire issue vanished. We went from hundreds of recess appointments under Clinton and Bush to a couple dozen under Obama to none since 2014. Even under unified government they stayed in session. (This was aided by ending the filibuster on nominations in 2013; no longer did the majority party have a need to push for recess appointments, since the minority could no longer block a nominee the majority wanted).

15. Enter Trump, who has decided that he would prefer to skip the entire Senate confirmation process and just put in place who he wants via recess appointments. Just do the whole cabinet that way. Have the House and Senate adjourn for 10 days so things are constitutional, and just stop wasting everyone’s time. Put the cabinet in place.

    

    Trump unsuccessfully trying to influence the vote for Senate Majority Leader

16. This is unlikely to happen, for any number of reasons. Most importantly, Senators don’t like being seen as lap dogs and they don’t like giving up their power.

17. Even more unlikely is the radical plan being floated/rumored where Trump would adjourn Congress himself under Article 2, section 3 in order to create the necessary recess. Look, the founders hated the royal power to dissolve, prorogue, and convene their colonial assemblies. They specifically wrote it out of the Constitution. It would be insane for Congress to even consider letting Trump adjust their session. And I doubt Trump has the votes in the House—yes, you need the House to do this—to even try it. And if they did do it successfully, I’m not sure it’s constitutional. And, in any case, the presidential power in article 2 is best read very narrowly.

18. But the main reason none of this is going to happen is that Trump is nominating legitimately absurd people to core cabinet positions. If you wanted the Senate to go along with some recess-appointment scheme, the last thing you would do is nominate Matt Gaetz for Attorney General and RFK Jr. for Secretary of HHS. It’s a hard enough lift to say “let me do recess appointments instead of confirmation” but “let me do recess appointments so Gaetz can go to Justice” is just a lead zeppelin in the Senate.

19. I have no if Trump is testing the Senate here in some sort of power play. Maybe. He does do stuff like that. But I think people generally ascribe too much strategic rationality to him. As noted above, he’s just constantly looking for ways to create unconstrained power. And I definitely don’t believe in any of the 3-D chess bankshot theories about putting up crazy people to make it easier to confirm future nominees after they flame out. By all accounts, Trump barely thought through the Gaetz nomination. It was closer to spur of the moment.

20. That said, don’t hold your breath for a massive showdown on the Senate floor. That’s not how nominees fail. In a normal process, they 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. This is how the GOP Senate could maintain strong control over top admin nominees, but still have a 100% record of backing Trump nominees on the floor in his first term. They killed a lot of them before nomination (that’s why Bannon and Miller got WH jobs, not Senate-confirmed offices), and also a record-number were withdrawn or defeated in committee. You only get a defeat after a floor fight if someone wants one. Usually, no one does.

21. It’s pretty obvious Trump did not consult any GOP Senators on the Gaetz nomination, so obviously the normal process—even by 2017 standards—is not currently operating.

22. I do agree with Trump on one thing: the confirmation process is too slow. The president has about 4000 appointments he can make, and about 1200 of them require confirmation. Most recent administrations have barely gotten 1/3 of these posts filled in their first year. That’s not great for running the government.

    

    It just take a long time to get the political appointees in place

23. Some of this is the White House’s fault. They are slow to nominate people—less than half of the 1200 positions are typically nominated in the first year—and their vetting process is absurdly overbearing. Some of it is the Senate’s fault; their vetting process is slow, too. And even without the possibility of a filibuster, it’s still slow going on the Senate floor to confirm people.

24. But the real problem is that we just have too many posts that require Senate confirmation. So many of the Assistant Secretary positions could be converted to straight presidential appointments. We could cut that 1200 to 600 and it would be fine. Congress did reduce the number in 2012. Another round of reform would be worthwhile.

25. However, this has nothing to do with the cabinet, and surely not the inner cabinet of State, Treasury, Defense, and Justice. The Senate almost always pre-clears those spots before the new administration takes over, and the nominations are confirmed on the first day of the new presidency. There’s simply no argument that the delays in filling the administration have anything to do with the heads of the departments. And that’s why Trump’s recess appointment plan makes no sense as a matter of speed; it’s simply an end run around power-sharing.

26. I was pleasantly surprised Trump picked Rubio for SecState. My biggest ongoing concern about Trump is foreign policy, and within that I’m very concerned that he’s going to be soft on China and give away the farm economically and—god help us—on Taiwan. Rubio is a lightweight in my view, but he’s anything but a China dove, and maybe getting out of the legislature will play to his strengths.

27. I enjoyed this foreign policy discussion assessing Trump.

28. The other question I’ve been fielding all week is about the DOGE—the Department of Government Efficiency evidently being run by Elon Musk and Vivek Ramaswamy. There’s a lot less here than meets the eye. It’s not an actual department of the government, only Congress could create that. It has no appropriation from Congress to fund it. If it is setup as an actual government entity, it would likely be a presidential FACA committee in the Executive Office of the President, with little staff or money or resources, and no authority to do anything except advise POTUS and produce advisory reports.

29. My guess, however, is it won’t even be that. FACA committees have onerous requirements including sunshine laws and public meetings and Designated Federal Officials, and I think Elon and Vivek would just prefer to skip all that and make this a private sector thing that’s not part of the government at all. Just a couple of dudes who have a lot of money, a pretty big bullhorn, and the president’s ear. That’s not nothing! But it also doesn’t entail any actual governing authority.

30. I suspect Musk will wear out his welcome with Trump pretty quickly. Would not surprise me if they are no longer collaborating—and maybe even publicly beefing—this time next year. There’s already reporting Trump is sick of Musk hanging around, and it just feels like too much alpha ego in the room.\

31. I think the DOGE think will flop as a policy enterprise, but it might be successful as a political project. Right now it looks like every other unserious government waste complaint-factory; Musk appears very good at showing you things that are wastes of money in the government, but seemingly can’t name a single program he would like to cut. “Waste, fraud, and abuse” is a famous phrase, but it’s DC speak for “I’m full of shit” and it always has been, regardless of the speaker.

32. The more general budgetary problem is that no one can really find anything to cut of any size. Between social security, Medicare, Defense/Security, and debt service, you’ve got about 85% of the federal budget and 75% of the civilian employees of the government. There’s no route to fiscal sanity that doesn’t include either cutting one of those things, or finding a way to raise a ton more revenue. Even if you cut everything else—eliminate the Transportation Department, the Agriculture Department, EPA, NASA, the SEC, etc.—you aren’t getting very far. And no one wants to cut any of those things once you ask for specifics. Kill the Treasury Department. Good luck.

33. What Musk and Vivek and DOGE might be onto is making government work smarter. That’s a sold aim, and one that could see real returns. I would applaud them if they do it. The problem is that they seem largely stuck in unserious meme world, highlighting problems to generate outrage among the barstool conservative crowd. But there are neo-liberals who have been working on these things for the past decade. Seriously. And high profile neoliberals like Ezra Klein and Jennifer Pahlka championing it.

34. My suspicion is that Musk and Vivek don’t actually want government efficiency. They just want small government. That’s fine! But that brings you back to the cuts. And a smaller government can still be a smart one. And should be a smart one; read Tyler Cowen on how well the Singapore civil service works. The trick? Pay them well and build a culture of high quality. Brain drain in. That doesn’t quite sound like Musk, but if you squint you might be able to imagine it.