While a worried nation tries to make sense of Do

While a worried nation tries to make sense of Donald Trump’s spate of unqualified, extreme nominees, the president-elect is setting the stage for an even more alarming takeover: a vast, dangerous and unconstitutional expansion of presidential power. This agenda includes not just emasculating the Senate’s advice-and-consent role but also refusing to spend money that lawmakers have appropriated, curbing the independence of federal regulatory agencies and eviscerating the nonpartisan civil service.

Political appointees, however appalling, come and go, and the worst of Trump’s picks should be stopped. But we cannot lose sight of more enduring perils to democracy. These aren’t just bad policies (Trump has plenty of those, starting with his threat to conduct mass deportations); they are structural changes. And once these guardrails are demolished, restoring them will be nearly impossible, and the damage to the constitutional order might be irreparable.

This might sound overstated — I hope it is. Congress could frustrate some of Trump’s efforts; more likely, although far from assured, courts could step in. Still, it would be foolish not to consider what his plans might do to our constitutional system of checks and balances.

George Washington warned against exactly this in his farewell address, advising national leaders to “confine themselves within their respective constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another.” That “spirit of encroachment,” Washington cautioned, “tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.”


A real despotism. “I have an Article 2, where I have the right to do whatever I want as president,” Trump asserted during his first term. Now he is poised to test the limits of that claim.

None of this is a secret. To the contrary, the changes are trumpeted in videos on the campaign website, with titles such as “Agenda47: Using Impoundment to Cut Waste, Stop Inflation, and Crush the Deep State” and “Agenda47: President Trump’s Plan to Dismantle the Deep State and Return Power to the American People.”

The nation cannot afford to ignore what is going on here. “Constitutionally speaking, we are in the fight of our lives,” Rep. Jamie Raskin (D-Maryland) told me, and I fear he is correct. What follows is a concerned citizens’ guide to what is coming. These issues might sound arcane; Trump and his allies are no doubt counting on the prospect that the public will tune out. But we should not avert our eyes.

Expanding recess appointments. This might be the most audacious of Trump’s efforts to enlarge presidential authority at the expense of Congress. “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner,” Trump posted on X and Truth Social.

The Constitution explicitly grants presidents “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That means a recess appointee can serve for as long as two years without Senate confirmation.

But this is a horse-and-buggy-era exception to the general rule requiring that the president nominate senior officials “by and with the advice and consent of the Senate.” Until a 2014 Supreme Court ruling, National Labor Relations Board v. Noel Canning, effectively ended the practice, presidents used recess appointments sparingly, mostly in situations where their nominees had languished in a partisan Senate. Now, Trump wants Congress to go into recess so he can engage in a mass end run around the Senate for nominees who might not otherwise win approval.


If necessary, he would invoke another constitutional provision, never before used, that lets the president “on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.” In his first term, during the pandemic, Trump threatened to employ this power but never did.

I find it hard to believe that the Senate would cooperate in this evisceration of its advice-and-consent authority by going into recess. That leaves the question of whether the House, under the craven leadership of Speaker Mike Johnson (R-Louisiana), would comply by declaring a recess to which the Senate would not accede — creating a disagreement between the House and Senate that could open the door for Trump to declare an adjournment. Here, too, there are thin grounds for optimism: the slim House majority, and the presence of enough Republicans who won in swing districts that they might not be willing to cave to Trump’s demand for such extraordinary power.

But if that were to happen? Under the terms of Noel Canning, Trump would probably get away with it. Noel Canning gave the nod to recess appointments that occur within congressional sessions, not between the two year-long sessions. And it said recess appointments weren’t limited to vacancies created during the recess itself but could also be used for vacancies that arose earlier. Under Noel Canning, as long as there is a recess of at least 10 days, anything goes.

The tricky part is that the conservative justices — Justice Antonin Scalia, who is now gone, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — disagreed with those aspects of the ruling. Scalia denounced the recess power as an “anachronism” that undermines the separation of powers, writing, “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process.”

Now there is a six-justice conservative supermajority. Would the conservatives revisit — and overrule — that part of Noel Canning if they had the votes to do so, thereby frustrating Trump’s effort? Or, with the shoe on the other party’s foot (Noel Canning involved President Barack Obama’s recess appointments), would they continue to worry about “ignoble” uses and enabling circumvention of the Senate’s role? I suspect they would stick with the case as decided and let Trump get away with it.


President-elect Donald Trump with his wife, Melania, during an election night party in West Palm Beach, Florida, in the early hours of Nov. 6. (Jabin Botsford/The Washington Post)
Impounding appropriated funds. Congress, the Constitution provides, controls the power of the purse: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Lawmakers decide how much to spend and for what purposes; the executive branch acts on their instructions.

Since the beginning of the republic, this division of labor has proved inconvenient for presidents who don’t want to spend money as Congress has dictated and who have used their asserted power to “impound,” or decline to spend, appropriated funds.

This tension came to a head during the presidency of Richard M. Nixon: Among other things, he refused to spend half the money allocated to sewage treatment after Congress overrode his veto of the Clean Water Act. In 1974, Congress passed the Impoundment Control Act, which requires the president to spend appropriated money unless he obtains congressional approval not to disburse the funds.

Trump has vowed to challenge the law as an unconstitutional “usurpation” of presidential power, and said he will direct agencies, on his first day in office, “to identify portions of their budgets where massive savings are possible through the Impoundment Power.”


“For 200 years under our system of government, it was undisputed that the president had the constitutional power to stop unnecessary spending through what is known as Impoundment,” Trump said in a June 2023 video.

This is wrong. In 1988, during the Reagan administration, Assistant Attorney General Charles Cooper, head of the Justice Department’s Office of Legal Counsel, concluded that “to the extent that the commentators are suggesting that the President has inherent, constitutional power to impound funds, the weight of authority is against such a broad power in the face of an express congressional directive to spend.”
Citing a 1969 memorandum from William H. Rehnquist, then head of the Office of Legal Counsel and later chief justice, Cooper wrote: “This Office has long held that the ‘existence of such a broad power is supported by neither reason nor precedent.’ Virtually all commentators have reached the same conclusion, without reference to their views as to the scope of executive power.”

The Supreme Court has never directly addressed the question, although, as Cooper’s memo noted, an 1838 case “can be read to support the proposition that the executive’s duty faithfully to execute the laws requires it to spend funds at the direction of Congress,” and lower courts have consistently agreed. But I’m not entirely confident that the current Supreme Court majority, with its evident disdain for Congress and commitment to broad executive power, would go along.


President-elect Donald Trump at the launch of a test flight of the SpaceX Starship rocket on Tuesday in Brownsville, Texas. (Brandon Bell/Getty Images)
Curbing independent agencies. Starting in the 1880s, Congress established certain government offices as independent agencies, run generally by multimember commissions whose members serve fixed terms, possess particular expertise and are left free to operate outside direct executive control. But conservatives have long chafed at the agencies’ existence, which they consider an unconstitutional “headless fourth branch of government.” They want the president to have power to fire commissioners for any reason — not only for cause, as is the case under current law — and to review their proposed regulations.

Trump is on board. “I will bring the independent regulatory agencies, such as the FCC and the FTC, back under presidential authority, as the Constitution demands,” he said in an April 2023 video, referring to the Federal Communications Commission and Federal Trade Commission. “These agencies do not get to become a fourth branch of government, issuing rules and edicts all by themselves.”

What would this mean for such agencies, which also include the Federal Reserve, Securities and Exchange Commission, Commodity Futures Trading Commission, National Labor Relations Board and Consumer Product Safety Commission?


“What we’re trying to do is identify the pockets of independence and seize them,” Russell Vought, who headed the Office of Management and Budget during the first Trump administration and has been tapped to lead it again in the second, told the New York Times last year. Specifically, Vought said, “It’s very hard to square the Fed’s independence with the Constitution.”

Eliminating the independence of these agencies would reflect a dramatic tilt in favor of presidential authority. There are any number of ways Trump could force the issue. He could attempt to fire Federal Reserve Chair Jerome H. Powell, who said tersely at a post-election news conference that such a move was “not permitted under the law.” (Powell can only be fired for cause.) The Post reported that Trump is considering taking the extraordinary step of firing Democratic members of the National Labor Relations Board; because of the way the labor agency is set up, Democrats are poised to retain majority control until 2026, if the Senate reconfirms the current chair to another term before it leaves town.


In any event, the issue of the constitutionality of independent agencies appears destined to return to the high court — with or without presidential action.

In a 1935 case, Humphrey’s Executor v. United States, the court rejected President Franklin D. Roosevelt’s effort to fire William Humphrey, an FTC commissioner, and Roosevelt’s argument that being limited to firing commissioners only “for cause” was an unconstitutional infringement on executive power.

But Humphrey’s Executor has long been in conservatives’ crosshairs. More than 20 cases raising constitutional challenges to the independent structure of agencies are making their way through the lower federal courts. The justices just declined to hear one such case, but that reticence might not last.

Bottom line:
Politicizing the civil service. A second term will give Trump the chance for a do-over in his bid to gain authority to remove tens of thousands of “rogue bureaucrats” who currently enjoy protections against being fired for political reasons. He has declared a “Day One” plan to reissue his October 2020 executive order to create a new Schedule F under which the president would have full power to remove any employee “whose position has been determined to be of confidential, policy-determining, policy-making, or policy-advocating character.”

This change would upend the civil service system, put in place in 1883 to end the spoils system. Currently, there are about 4,000 political appointees atop a federal workforce of 2.2 million. Trump, in his zeal to root out what he calls the “deep state,” would expand presidential power to fire at will an estimated 50,000 or more federal employees, depending on how broadly the exemption is interpreted.

“I will immediately re-issue my 2020 Executive Order restoring the President’s authority to remove rogue bureaucrats,” Trump announced in a March 2023 video. “And I will wield that power very aggressively.”

One sign of how sweeping the change could be: After Trump left office, the National Treasury Employees Union unearthed documents that it said showed how the Office of Management and Budget “stretched the definition of policy work to cover the vast majority of the OMB workforce, from attorneys to GS-09 assistants and specialists who have nothing to do with setting government policy.”

Trump might find it difficult to institute these changes right away. President Joe Biden not only revoked Trump’s Schedule F order but also adopted a new rule to shield federal workers against having their civil service protections removed. Undoing that and issuing new regulations is a cumbersome, time-consuming process.


The incoming administration might be tempted to act without going through these procedural hoops. Elon Musk and Vivek Ramaswamy suggested as much in a recent Wall Street Journal op-ed, writing that the civil service law leaves Trump room to quickly “implement any number of ‘rules governing the competitive service’ that would curtail administrative overgrowth, from large-scale firings to relocation of federal agencies out of the Washington area.”

But moving so fast would be risky, as shown by the Trump administration’s loss at the Supreme Court when it did a sloppy legal job of trying to revoke protections, from the Deferred Action for Childhood Arrivals program, for immigrant “dreamers.”

It’s harder to predict how the court would deal with a revived Schedule F on the merits. The Treasury employees union, in a lawsuit challenging the original Trump order, called it “a textbook example of the President acting contrary to Congress’s express and limited delegation of authority to the President.” Still, a court inclined to a broad reading of executive powers might give the president more authority over firing federal workers.


In 1952, Supreme Court Justice Robert H. Jackson, previously FDR’s attorney general, warned of the consequences of untrammeled presidential power in concluding that President Harry S. Truman lacked constitutional authority to seize control of steel plants during the Korean War. “The tendency is strong to emphasize transient results upon policies … and lose sight of enduring consequences upon the balanced power structure of our Republic,” Jackson wrote.

In Jackson’s formulation, a president’s power is “at its lowest ebb” when he “takes measures incompatible with the expressed or implied will of Congress” — the same sort of measures discussed here. “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution,” Jackson admonished, “for what is at stake is the equilibrium established by our constitutional system.”

The examples outlined above aren’t the worst of what Trump could do — or the cruelest or the most extreme. Actions such as separating families, deporting dreamers and using the Justice Department to punish political enemies fall into those two categories. Yet these threatened moves represent assaults on the very architecture of democracy — assaults that must be repelled, as Jackson instructed us, lest they permanently warp the constitutional structure.