What Are the Limits?
Hello, I hope that you and yours are doing well.
Appetite for the news has gone down in the wake of the election, as many people find it depressing.
That said, a few questions are on everyone’s minds in regards to the incoming administration:
1. Are they going to be able to confirm their announced Cabinet appointments?
2. Will the Department of Government Efficiency really be able to downsize the federal government?
3. Will they follow through with their announced plans, i.e. mass deportations?
To help answer these questions, I interviewed legal expert and ABC news contributor Sarah Isgur on the podcast this week. “The Supreme Court has taken a dim view of the expansion of executive powers these past several years. A few of the Justices who Trump appointed, for example, actually said in one opinion that recess appointments weren’t still a thing and were an anachronism based on a time when it was a lot harder for the Senate to get to D.C. from their hometowns via horse and carriage.” This is one of the main workarounds that gets mentioned, which is that Trump would make his appointments when the Senate is in recess. Sarah thinks this would run afoul of recent rulings.
That said, Sarah noted that it’s possible that the Supreme Court could wait to hear the case for months during which time the appointed Cabinet member could serve in their role. “The Court could say you can’t appoint the person while they’re waiting for the case to be heard, or they could say that they can serve in a temporary capacity. But the temporary capacity could be 18 months, after which it could become moot.”
A number of Republican Senators have already indicated that they don’t like a couple Cabinet picks. Gaetz likely dropped out for this reason. Sarah said that both the Supreme Court and the Senate could look to avoid a head-on confrontation with Donald Trump in order to preserve their power. “It looks bad, obviously, if you say something and then Trump does another. So both the Senate and the Supreme Court will try and avoid that situation.”
So it seems that the Senate will indeed wield clout in its traditional approval role. What about Trump’s stated desire to fire various federal employees and downsize the government?
“There is actually a law called the anti-deficiency act that stipulates that the Executive Branch must spend the amount of money allocated by Congress to a particular agency,” Sarah observes. “So you can’t just not spend the money, at least according to the statute.” I don’t think this would constrain Trump and his allies. Elon in particular is going to want to head down this road. His WSJ op-ed with Vivek lays out a clear plan to shrink the workforce by reducing the number of regulations they are responsible for. In a battle between Elon and the bureaucracy, I’d bet on Elon. I’d be very concerned if I was a rank-and-file federal employee.
There’s a famous quote from President Andrew Jackson about the Supreme Court ruling against forced removal of Native Americans in 1832: “John Marshall (the Chief Justice) has made his ruling, now let him enforce it.” Andrew Jackson is not an admired President. But Donald Trump is going to feel he has a popular mandate based on his sweeping electoral win. His staff picks indicate that he was sincere in what he said he was going to do as President. I think he follows through, and the Senate and the Supreme Court will find themselves increasingly challenged as to when to stand up to Trump and when to let him have his way. The ongoing decline of our institutions will speed up in 2025.
For my interview with Sarah Isgur, which is more positive, click here. To help fuel the Forward political movement click here – new people are joining these days. For a bottle of wine, click here. Kidding!
