Thinking Ahead: What Lessons Are We Learning From the Trump Presidency?
Ideas for Reform for a Post-Trump World
Earlier this week I spent a delightful evening speaking about due process with Virginians for the Constitution, a new grassroots group that was formed by folks in Northern Virginia concerned by the Trump Administration’s attacks on the Constitution. If you live in Northern Virginia, you should check them out. And for those of you who live elsewhere, they could be a great model for your own local grassroots organization.
During our discussion, one member of the organization asked a very good question: What changes to our laws would be prudent once Trump leaves office to protect us from another authoritarian who will abuse power?
This is indeed an excellent question that calls into mind previous waves of reform. After the Watergate Scandal and the Nixon Presidency, Congress passed landmark a host of statutory reforms, including the War Powers Act, the Impoundment Control Act, amendments to the Federal Election Campaign Act; the Presidential Records Act, the Foreign Intelligence Surveillance Act, elements of the Ethics in Government Act, and the Hughes-Ryan Amendment to the Foreign Assistance Act (which placed controls on covert action). Excessive Presidential power resulted in a congressional response. Perhaps we should do the same after Trump leaves office.
There is real value in thinking about this question now. It obviously creates an agenda for action when Democrats take back power. It also will give candidates who believe in the Rule o Law an agenda to run on.
So what would make sense in response to Trump? I will offer some thoughts, but I urge all of you to give your own thoughts in the comments below. Let’s start a conversation! Let the brainstorming begin!
I will start the discussion with a few ideas:
First, as I noted in my previous post on the President’s emergency authority, we need to cabin the extensive “emergency” authority Congress has granted the President over the years. A good first step would be to get rid of the emergency authority that doesn’t make sense or that could be abused. We can start with Section 706(c) of the Communications Act of 1934 allows the president to shut down or take over radio stations. We also need to amend the National Emergencies Act of 1976 to put back Congress’ check on the use of emergency authority. While the Act provided that Congress could terminate any declared national emergency by a resolution passed by both houses that did not require a Presidential signature to be effective—a legislative veto—the Supreme Court struck down legislative vetoes as unconstitutional in its 1983 decision in INS v. Chadha. Congress needs to return to the balance of power it intended in the National Emergencies Act before the Supreme Court held that legislative vetoes are unconstitutional.
The Project on Government Oversight (POGO) has suggested several reforms including: limiting declared national emergencies to 30 days unless Congress affirmatively voted to extend it, then further limiting emergencies to one year unless Congress approves a renewal, not allowing the use of national emergency authority for expenditures Congress has rejected via its authorization or appropriations processes, and requiring more detailed justifications for Presidential declarations of emergency.
And while we are at it, an amendment to the International Emergency Economic Powers Act to make clear it can’t be used to impose tariffs would made sense as well.
Second, we need to enact legislation that will ensure that a future President cannot simple refuse to spend funds appropriated by Congress. The Constitution gives Congress the power to determine the nation’s spending. After Nixon ignored this power of the purse by “impounding” appropriated funds, Congress passed Impoundment Control Act, which regulated the ability of a President to simply refuse to spend the funds that Congress has appropriated. Congress thought it had fixed the problem, but the fact that Trump has effectively destroyed USAID and refused to spend a large share of the appropriated funds suggests more is needed. It may be that the litigation challenging the refusal to spend appropriated funds will be successful—it has been so far—but in the meantime the damage is done.
So how has Trump gotten around the Impoundment Control Act? One trick is to claim that the refusal to spend is simply a delay. Russell Vought, the OMB Director, claimed “What the president has unveiled already are not impoundments. They are programmatic delays.” While Trump is cancelling or suspending billions of contracts and grants, the claim is that the money may still be spent. The Impoundment Control Act does indeed allow for “programmatic delays”, but these are limited. During the Trump Administration, Trump delayed funds appropriated for Ukraine on the basis, and this was rejected by GAO, which held that this delay was not programmatic, but was instead an effort to second guess Congress’ appropriation.
Another argument is more direct—that the Impoundment Control Act is unconstitutional and can be ignored. As Zachary Price argued in a Lawfare post, this argument is very weak:
Even before the ICA, the Supreme Court rejected one of President Nixon’s impoundments in Train v. City of New York, reasoning that the appropriations statute in question required the expenditure. Although the Court did not address constitutional issues in Train, neither did it hint at any constitutional problem with a spending mandate, despite contemporaneous claims by Nixon that he held a constitutional impoundment power. In a partial dissent in the Clinton case, Justice Antonin Scalia observed that the Court in Train “proved [Nixon] wrong.” By the same logic, the ICA’s limits now bind the president. They are part of the law that the Constitution obligates the president to “faithfully execute[].”
So what can be done? It may be that the litigation against the Trump Administration’s egregious violation of the Impoundment Control Act will result in court rulings that will be sufficient to prevent a future President from ignoring the Act, but here are some additional thoughts:
Make violation of the Impoundment Act a criminal offense. Right now, under the Anti-Deficiency Act, it is a crime for a federal employee or agency to spend more money than appropriated by Congress. Why not make it a crime to spend less that what Congress has appropriated unless done consistently with the Impoundment Control Act? Trump may be absolutely immune, but his minions who are the ones ensuring money is not spent are not.
During the first Trump Administration, it added a new provision to the OMB Grant Guidance that allowed the federal government to terminate grants “if an award no longer effectuates the program goals or agency priorities.” Sadly, the Biden Administration made no effort to remove this language. It is this provision that is being used to cancel billions in grants—including most of the USAID grants. Fortunately, this provision conditions this right to terminate “to the greatest extent authorized by law” so grantees still have arguments to make. Still, this provision has caused great mischief. It should be removed.
Third, repeal the Alien Enemies Act. We should have done so when it was used to put Japanese Americans in concentration camps, and using it to send immigrants to a notorious El Salvadoran prison shows that we have not learned our lesson.
Fourth, revise the Ethics in Government Act to make the President and Vice President subject to the conflict of interest laws. Congress exempted the President out of concern that obeying the law would interfere with the President’s ability to the job. With the sole exception of Trump, however, Presidents used blind trusts to avoid even the hint of a conflict. Trump has not only not done so—he is actively using his Presidency to enrich himself and his family. We can’t allow that to happen again.
Those are just a few ideas, and I have not even touched other areas of concern—such as the mass firing of federal employees. There is clearly much more that we need to consider doing in light of the Trump excesses. Please provide your ideas in the comments below. Let the brainstorming begin!