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Washington Post
05-05-2025
- Politics
- Washington Post
Trump cannot remake the government with the stroke of a Sharpie
Alan Raul is board secretary of the Society for the Rule of Law and a lecturer at Harvard Law School. He served as legal counsel in the Ronald Reagan and George H.W. Bush administrations. The U.S. district and appeals courts are inundated with fast-moving cases challenging President Donald Trump for (among other things) dismantling federal agencies established by Congress, firing members of independent boards and commissions who don't serve at the pleasure of the president and terminating inspectors general whom Congress endowed with a measure of independence for effective oversight of the executive branch. The judges (and shortly, the Supreme Court justices) who will be deciding these cases need to remember that, under the Constitution, Congress's legislative power to set polices and rules to govern the executive branch must generally prevail over presidential executive orders and unilateral mandates. These courts must reject any extreme version of the 'unitary executive' theory — a legal concept that would allow the president to disregard the contours and safeguards that Congress prescribes for the executive branch to follow. Unchecked presidential power is not what the Framers had in mind. My analysis might be a surprise coming from an associate White House counsel to President Ronald Reagan. In fact, I served in the White House during the years when the unitary executive theory came into vogue, and indeed, I supported it. Today, however, we can all see how an unleashed president can wreak havoc on constitutional order and the rule of law. I can also see how the Supreme Court's unitary executive decisions of recent years have been, by focusing disproportionately on 'separation of powers,' far too solicitous of presidential power against encroachment by an intrusive Congress. But the constitutional genius of America is checks and balances. And by rereading the Federalist Papers and looking back at earlier Supreme Court decisions, the courts can restore a rule of reason on how legislative and executive power are meant to operate together. This is crucial now because the cases involving the Federal Trade Commission, National Labor Relations Board and Privacy and Civil Liberties Oversight Board are coming up fast and might reach the Supreme Court quickly through the court's emergency 'shadow docket.' Though the Constitution vests the president with all executive authority, it vests Congress with all legislative authority, including, significantly, the power to set fundamental policies and procedures for the executive branch. The Framers exalted the separation of powers, but they also understood that the branches' authorities were not designed to be 'wholly unconnected.' In fact, in Federalist 48, James Madison wrote that the branches 'should not be so far separated as to have no constitutional control over each other.' In Federalist 47, he noted that a 'partial mixture' of governmental powers is necessary for the preservation of liberty. This is why Congress is not usurping or encroaching on presidential authority when it exercises its sole power to establish (or sunset) executive departments and offices, mandate binding spending levels, impose independent oversight and, within certain limits, set up agencies whose boards are composed of bipartisan commissioners that do not serve at the pleasure of the president. So, what is Trump supposed to do if he believes that the government is bloated, spending is out of control, and programs and policies are poorly conceived? Answer: He must recommend to Congress corrective measures that he deems 'necessary and expedient,' just as Article II of the Constitution provides. As every schoolchild in America knows — or should know — it is for the president to propose and Congress to dispose. As luck would have it, the U.S. Code includes laws detailing how the president can recommend spending rescissions and government reorganizations for Congress to vote on. Indeed, the existing Impoundment Control Act of 1974 and the Reorganization Act Amendments of 1984 set forth specific procedures for the president to propose spending cuts and plans to transfer all or part of an agency to the jurisdiction and control of another agency; or to consolidate or abolish all or part of the functions of any given agency. But Trump cannot just do it with the stroke of a Sharpie. This is not controversial. The conservative Heritage Foundation wrote in 2017 that 'under current law, the President has no statutory authority to reorganize the executive branch, except where acts of Congress delegate authority to make particular changes.' Republican members of Congress fully understand this limitation. In February, Sen. Mike Lee (R-Utah) and Rep. James Comer (R-Kentucky) introduced the Reorganizing Government Act. Their bill, as a joint news release claimed, was intended to facilitate up or down voting on 'plans submitted to Congress by President Donald Trump in order to streamline government operations to better serve the American people.' A House panel even approved the measure on March 25. Yes, the Framers were amazing, but they were not always clairvoyant. They believed the president would always be weak relative to the legislature, and they didn't foresee political parties. The ensuing centuries have shown that presidents are generally strong and energetic, while Congress is frequently stalemated and quiescent. And partisan politics now predominates over the institutional rivalry that the Framers expected would suppress interbranch power grabs. Nonetheless, they did approve of 'auxiliary precautions,' as described in Federalist 51, to guard the people against oppression by their rulers. It was for this very purpose they created a 'structure of the government' that would 'furnish the proper checks and balances.' This trip down Federalist lane is necessary because, last year, the justices egregiously disregarded checks and balances in granting presidents near-absolute immunity to violate criminal law. Egregious because if there is one check and balance that should always be paramount in our democracy, it is that no man is above the law — especially criminal law. Yet the court's immunity decision did not once mention 'checks and balances' to protect the people — it mentioned only 'separation of powers' to insulate the president. To begin to scale back this over-deference to the commander in chief, the current justices can look to their predecessors' 1952 decision in Youngstown Sheet & Tube v. Sawyer. In Youngstown, the court struck down President Harry S. Truman's unilateral decision to take possession of a steel mill — by executive order — that the president claimed was necessary to prevent a nationwide strike that would jeopardize national security. The claimed authority, the court held, was inherently legislative in nature, and could not be justified in the absence of a law from Congress or a clear authorization in the Constitution itself. The court's wisdom in 1952 should guide the courts now in ruling on the validity of Trump's various executive orders. Trump's actions are based in radical claims of power that do not exist. As prior justices understood, unchecked presidential power and unbalanced executive chaos is not what the Framers had in mind.
Washington Post
12-02-2025
- Politics
- Washington Post
Why DOGE is unconstitutional
Alan Charles Raul served as associate White House counsel under President Ronald Reagan and as general counsel of the Office of Management and Budget under Reagan and President George H.W. Bush. He currently serves as board secretary of the Society for the Rule of Law and is a lecturer at Harvard Law School. President Donald Trump, his appointees, acting officials and quasi-official outsiders are in the midst of a radical restructuring or termination of government employees, agencies and programs. Whether this is in all, many or some regards desirable is debatable. Also debatable is whether the 49.8 percent of the electorate who elected Trump want all of this, and whether the 50.2 percent who voted for Kamala Harris or a third-party candidate want any of it. What is not debatable, however, is that Congress has not authorized this radical overhaul, and the protocols of the Constitution do not permit statutorily mandated agencies and programs to be transformed — or reorganized out of existence — without congressional authorization. The Constitution is well known to interpose meaningful checks and balances and a separation of powers among the responsibilities of the executive, legislative and judicial branches. It is also well understood that the respective branch's powers and duties will intersect and overlap. Fundamentally, however, all legislative power belongs to Congress, and executive power to the president. The judiciary steps in when the parameters of shared authority get complicated or confusing and constitutional lines are crossed. The radical reorganization now underway is not just footfaulting over procedural lines; it is shattering the fundamental checks and balances of our constitutional order. The DOGE process, if that is what it is, mocks two basic tenets of our government: that we are nation of laws, not men and that it is Congress which controls spending and passes legislation. The president must faithfully execute Congress's laws and manage the executive agencies consistent with the Constitution and lawmakers' appropriations — not by any divine right or absolute power. Where the president identifies policy areas that need reform or spending that needs to be supplemented, reduced or eliminated, the Constitution empowers him to recommend such measures as he finds 'necessary or expedient' to Congress for it to dispose one way or the other, or alternatively ignore. Yes, the president may advance his own policy agenda — including, of course, the ability to recommend reforms to Congress that he believes necessary or expedient. But there is no reading of the Constitution that allows any president to claim that a political mandate, or a political promise made, obviates or supersedes the role for Congress. It is the House and Senate that 'make all laws which shall be necessary and proper for … the Government of the United States or in any Department or Officer thereof.' Even under the most aggressive view of the president's 'unitary executive' control over the entire executive branch and independent agencies, it is Congress's sole authority to appropriate and legislate for our entire government. The president basically directs the executive branch within the contours prescribed by Congress, subject to constitutional checks and balances. To be sure, the president and Congress share policy responsibility because the president recommends budgets and necessary and expedient measures to Congress, whose bills the president can sign into law or veto. But in the end, the president is constitutionally stuck with the policies for the federal government that Congress enacts and appropriates. No one man in America is the law — not even a Trump or an Elon Musk. So, how can the radical overhaul Trump and Musk are undertaking be reconciled with our constitutional order? Quite simply, it cannot be. Congress must step in to enact this radical transformation — or the Supreme Court must stop it. In the past several years, the court has provided unmistakable direction that Congress, and not the executive, determines the scope and policy for the country. The court even narrowed the president's previously long-held entitlement to deference when interpreting ambiguous laws and policies. Specifically, the Trump-Musk quest for government efficiency is led by a 'department' that Congress did not establish, by unelected operatives who exercise overwhelming authority without appointment under the appointments clause, who are not subject apparently to any checks and balances, who are not faithfully executing the laws Congress has appropriated and legislated, and who are in the process of eliminating whole agencies, programs and millions of employees without any congressional authorization whatsoever. And they are doing so without explaining and recommending such measures to Congress (or to the public, for that matter). If all this is not a 'major question' for Congress to decide with respect to the impact and consequence for America, then nothing is. This DOGE usurpation of the constitutional order cannot be squared with the Supreme Court's 2022 decision in West Virginia v. EPA. In that case, the justices struck down a Clean Air Act interpretation of the Biden administration on the grounds that it was a 'major question' of profound political and economic significance to the country at large — and that Congress had not clearly authorized those impacts. The DOGE transformation of America contemplates a much more profound change, without any authorization by the peoples' representatives at all. The judicial branch cannot allow this profound political and economic program to proceed without clear congressional authorization, which to this point is completely absent. The fact that Trump was duly elected president does not displace the role of Congress to pass laws and set policy, and the fact that some or even much of the Trump-Musk transformation might be desirable does not make it constitutional. Campaign promises requiring legislation do not become law unless and until Congress says so. Thus, the Republican- and Democratic-appointed judges who have recently reined in the U.S. DOGE Service have not rejected the Trump administration's quest for efficiency or reorganization, but rather, they are just insisting on holding the executive branch to long-standing constitutional, statutory and administrative rules. What Trump may do is to follow the Constitution (Art. II, Sec. 3) and law (31 U.S.C. Sec. 1111) by identifying and recommending major questions for Congress to answer. In the absence of any congressional authorization, the federal judiciary must rein in the lawless agencies or officials when they overreach without congressional authority. Moreover, federal judges may no longer defer to extraordinarily expansive interpretations of executive branch authority, under DOGE or otherwise. The Supreme Court laid down that rule clearly in 2024, when it decided Loper Bright Enterprises v. Raimondo. That case famously overruled the so-called Chevron deference, holding that it is the judiciary — not the executive — that gets to decide the right interpretation of the laws that Congress has enacted. If the United States is to be transformed by DOGE, the president, Congress and Supreme Court all have some work to do first.
