Do you believe the current expansion of executive power in the U.S. reflects a breakdown in democratic norms?
Yes, although the Constitution vests legislative authority in Congress, the Legislative Branch has ceded substantial power to the Executive Branch. This has been the trend for more than a century, but it accelerated during the New Deal era. The most obvious examples are the rulemaking authorities granted to agencies in the Executive Branch, as well as trade and war powers. The growth of hyper-partisanship has empowered presidents to simply ignore Congress and pursue their domestic agenda through executive orders and rulemakings.
Article I, Section 1 of the Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It’s simple enough. Congress makes the laws.
Well, that’s the way it’s supposed to be. Congress has routinely delegated its authority to the Executive Branch. This has happened over the course of several decades, going back to the late 19th century. The trend really accelerated during the Great Depression and the New Deal. It’s routine now for Congress to pass legislation with a general framework for a law, the important details of which are filled by agencies housed in the Executive Branch.
The same is true of trade policy. Following the disaster of the Smoot-Hawley Trade Act, Congress initiated the process of transferring its trade power to the Executive Branch. First, with the passage of the Reciprocal Trade Agreements Act of 1934. Later, Congress granted the Executive Branch greater authority over trade through Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974.
Even the War Powers Act — originally passed to limit presidential power — has tacitly expanded executive power in practice for various reasons, as Congress rarely enforces it.
In recent years, as legislative gridlock and hyper-partisanship have grown, presidents have been willing to circumvent Congress. President Obama described this as using his “pen and phone” in the absence of congressional action. I’m not blaming President Obama for this problem. He’s just like every other president in the sense that he took the power left by his predecessor as a floor and, then, established a new floor for his successors. Presidents are all too willing to avoid the perceived inconveniences of going through Congress when they have federal agencies that are, in most instances, directly responsive to the White House and responsible for implementing a president’s agenda.
We’ve also elevated the presidency to a paternalistic figure. To borrow from Bad Relgion, “We’ve got the American Jesus.” Once you add in hyper-partisanship and a Congress that’s unwilling to provide oversight of a president from the same party, we get a systemic breakdown of democratic norms, a blurring of constitutional lines, and repeated reminders that the Constitution is not a self-enforcing document.
Has the Trump administration ignored the Supreme Court? Are we in a constitutional crisis?
This is a tricky question to answer. Certainly, the administration has ignored district court orders on the unlawful federal funding freeze and deportations to El Salvador. Arguably, the administration hasn’t abided by the Supreme Court’s orders regarding the deportations and Kilmar Abrego Garcia. The Court does appear to be losing its patience with the administration, but the Court hasn’t outright said the administration has violated or otherwise ignored its orders. We do seem to be careening that way, which, if and when it happens, would put us into a constitutional crisis.
It’s pretty clear the Trump administration has ignored orders from district courts regarding deportations to El Salvador and the federal grant funding freeze. The question of whether or not the administration has defied the Supreme Court is a tricky one.
The Court appears to be skeptical of the administration in light of its order in Trump v. J.G.G. (2025), which was decided on April 7. In this case, the Court affirmed that detainees subject to removal under the Alien Enemies Act are entitled to due process. The majority holding states, “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
On April 19, the Court issued an order prohibiting the removal of detainees while their case works through the Fifth Circuit Court of Appeals. These detainees believed that they were at imminent risk of removal. In the April 19 order, the Court stated, “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” I’m not necessarily a “court watcher,” but I’ve read dozens of opinions over the years, including those from high-profile cases, and I can’t recall a more strongly worded order or holding.
Although Justice Samuel Alito dissented from the April 19 order, the language used suggests that the administration isn’t abiding by the Court’s rulings. Justice Alito wrote, “The Executive must proceed under the terms of our order in Trump v. J. G. G., and this Court should follow established procedures.” Now, the context of that line is that Justice Alito and Justice Clarence Thomas, who joined the dissent, took issue with the order because the Court allegedly didn’t follow procedure. The next part of the sentence is “and this Court should follow established procedures.”
Still, the majority, as well as Justice Alito and Justice Thomas, suggest the Court is growing impatient with the administration’s posture toward federal courts. For example, the Court has already directed the administration to facilitate and effectuate the return of Kilmar Abrego Garcia, who was sent to El Salvador in the first wave of deportations. The details of what “effectuate” means were supposed to be hashed out by U.S. District Court Judge Paula Xinis and the administration, per the Court’s order. However, the administration doesn’t appear to have acted. The Fourth Circuit Court of Appeals offered its take on the situation, noting on appeal by the administration of Judge Xinis’s order for expedited discovery, “The Supreme Court’s decision does not…allow the government to do essentially nothing. It requires the government ‘to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
The Fourth Circuit also acknowledged that the administration’s posture towards federal courts, with Judge J. Harvie Wilkinson writing, “Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.”
Having read all that, I will now answer the questions asked. The Supreme Court hasn’t specifically indicated that the administration has ignored an order or holding it issued. Still, there are signs of increasing alarm inside the Court and in lower courts of an impending collision between these two equal branches of government. It seems that we’re careening there. When that happens, the rule of law will have collapsed, and we will be in a constitutional crisis.
I’ve heard Congress still has to pass a bill to formalize the waste DOGE has found. What does that mean?
This means Congress has to pass legislation to rescind the budget authority for the spending that DOGE has identified as “wasteful.” Unless Congress acts, the underlying budget authority remains in place. Reportedly, a rescissions bill will hit the House floor the week of May 5.
This is in reference to the rescissions process under the Impoundment Control Act. Congress grants agencies considerable deference regarding the sums made available for contracts and grants. However, an administration can’t just spend money that Congress has appropriated. If an administration doesn’t want to spend money as directed by Congress, it can use the rescissions process under the Impoundment Control Act to eliminate the budget authority.
Think of it this way. As of April 22, DOGE claims $160 billion in “estimated savings.” There isn’t really any way to determine how accurate that figure is, but there’s reason to believe DOGE has overstated how much money it has saved. Regardless of how much DOGE has saved, the underlying budget authority remains intact, meaning that the next administration can simply come in and restore what DOGE identified as wasteful spending. That is, unless Congress rescinds the budget authority for that spending through the process established by the Impoundment Control Act. Reportedly, a rescissions bill will hit the House floor the week of May 5.
What do you make of Trump publicly pressuring the Federal Reserve to lower interest rates?
The Federal Reserve shouldn’t be interested in the success of any administration. Its mandate is to keep inflation low and pursue maximum employment. That’s it. Period. End of story. The stock market hasn’t responded well to Trump’s threats against Federal Reserve Chairman Jerome Powell, in part because Powell is seen as the adult in the room. A Federal Reserve chairman who is responsive to political concerns over what’s best for America’s financial system isn’t what the stock market wants, nor what the United States needs. We’ve seen this before. In the 1970s, Nixon pressured the Federal Reserve to keep interest rates low ahead of the 1972 presidential election. The Federal Reserve capitulated. The effect was runaway inflation that lasted more than a decade.
The Federal Reserve is an independent entity that shouldn’t base its decisions on an administration’s policy or political goals. That hasn’t stopped President Trump from pressuring Federal Reserve Chairman Jerome Powell to lower interest rates, including, in typical Trump fashion, lobbing insults at the head of the central bank. White House officials have suggested that Trump is studying the legal feasibility of firing Powell.
Powell has chaired the Federal Reserve since February 2018, having been appointed by Trump. He guided the Federal Reserve through the COVID-19 pandemic and the subsequent inflation caused by the fiscal response to the pandemic, supply chain disruptions, rising energy prices due to global uncertainty, and strong consumer demand. Some would even argue that the Federal Reserve contributed to inflation because of its monetary policy during the pandemic through artificially low interest rates and quantitative easing (read: debt monetization).
Trump has a track record of urging the Federal Reserve to lower interest rates. He did the same during his first term, even when the economy performed well. More recently, Trump has advocated for lower interest rates as a means of economic stimulus. He has cited the European Central Bank's cut to interest rates by a quarter point. It’s also the seventh rate cut in the past year. Inflation has markedly declined in the Eurozone while economic uncertainty has increased because of Trump’s trade war. Europe is doing what it can to get ahead of rocky times. Meanwhile, Trump’s trade war has created economic uncertainty in the United States and is exerting upward pressure on inflation. The Federal Reserve will respond with interest rate increases if inflation begins to rise again.
The Federal Reserve has a “dual mandate”–a target of 2% inflation and full employment. The success of an administration isn’t part of that mandate. Pressuring the Federal Reserve isn’t the best idea. Monday’s declines in the stock market are at least partly due to Trump’s attempts to publicly shame Powell. (I should note that there’s a case currently pending before the Supreme Court that could allow Trump to fire the heads of independent agencies. There are implications here for Powell and future chairs of the Federal Reserve. If Trump ultimately wins, and the Court allows broad enough latitude to fire the head of the Federal Reserve, it would enable Trump to appoint someone whom the White House may easily influence.) The gains in the stock market on Tuesday and Wednesday are a direct result of the administration showing signs that it may back down to some degree in the trade war with China and Trump’s comments that he doesn’t intend to fire Powell.
The thing is, we have an example of how political pressure on the Federal Reserve leads to poor outcomes. President Richard Nixon pressured Federal Reserve Chairman Arthur Burns ahead of the 1972 presidential election to keep interest rates low. A loose monetary policy combined with wage and price controls ushered in the era of stagflation. As wage and price controls were lifted and the Federal Reserve increased interest rates, inflation soared from 3.3% in 1972 to 6.3% in 1973 and 11.1% in 1974. In context, inflation in 2019 and 2020 was below the Federal Reserve’s 2% target. It jumped to 4.7% in 2021 and 8% in 2022 before falling to 4.1% in 2023.
Arguably, the Federal Reserve’s decision to keep interest rates artificially low had a bigger impact on the United States than the “Nixon shock”–the effects of removing the United States from the last vestige of economic order established by Bretton Woods. The impact of the Nixon shock was more global, while the Federal Reserve’s monetary policy decisions caused domestic pain.
The Nixon and Burns example is a cautionary tale for those who support Trump’s antagonism toward Powell. Tying monetary policy to the success of any administration, regardless of party, would be a terrible move.
