More than any other actions of the new Trump administration, Democrats are hysterical over his attacks on administrative agencies, particularly USAID. They say that Trump’s investigations of these agencies, suspension of payments to third parties, and layoffs of agency employees are illegal and unconstitutional.
Thus, from today’s New York Times:
Constitutional crisis?
The president can’t shut down agencies that Congress has funded, yet that’s what Trump did, with Elon Musk’s help, to the U.S. Agency for International Development. The president can’t fire inspectors general without giving lawmakers 30 days’ notice, but Trump dismissed 17 of them anyway. … “The president is openly violating the law and Constitution on a daily basis,” said Brendan Nyhan, a political scientist at Dartmouth College.
The claim that the president can’t decline to spend money that Congress has appropriated (which may or may not amount to “shutting down an agency”) is generally asserted without qualification. It derives from President Nixon’s attempt to impound some of the funds that Congress had appropriated for water pollution control purposes. The Supreme Court held in Train v. City of New York that Nixon’s withholding of these funds was unlawful. But Train was not decided on any constitutional basis. Rather, the opinion consisted of a close reading of the text and legislative history of two sections of a particular statute. If the language of the appropriating law had been different, the president may well have had the power to withhold some, or all, of the money.
While that controversy was in progress, Congress passed the Impoundment Control Act. That act says that if a president wants not to spend any monies appropriated by Congress, he must go through a procedure to give Congress notice and obtain permission. No president since Bill Clinton has tried to follow this procedure. To my knowledge, the constitutionality of the Impoundment Control Act has not been tested.
In my view, we are indeed experiencing a constitutional crisis. But it is not the one the Democrats have in mind. For President Trump to assert control over the executive branch is not only proper, it is long overdue. Under Article II of the Constitution, the President doesn’t just run the executive branch. He is the executive branch. All employees of federal agencies are members of the executive branch, and as such, ultimately report to the president. Their job is to carry out his policies.
The fact that this, to many, is not self-evident illustrates the real constitutional crisis that we face–the slow-moving crisis that has been underway now for close to a century. That crisis is the growth of the administrative state, the fourth branch of government that is mentioned nowhere in the Constitution. There is a strong argument that the administrative state is unconstitutional. What is incontrovertibly unconstitutional is the concept of an executive branch that is independent of the president.
But that is exactly what the Democrats want–a fourth branch that is not accountable to the president, but for which, at the same time, Congress need not take responsibility. Take the case of USAID. Trump and his minions have brought to light that USAID has been spending money on a transgender opera in Colombia, a transgender comic book in Peru, and so on. Beyond such obviously inappropriate expenditures, it has also come to light that USAID functions largely as a slush fund for politically-connected NGOs. Thus:
Since 2010, USAID has disbursed at least $2.13 billion in contracts and grants for Haiti-related work. Overall, just $48.6 million has gone directly to Haitian organizations or firms, just over 2 percent. Comparatively, more than $1.2 billion has gone to firms located in DC, Maryland or Virginia.
So what is the Trump administration supposed to do when it finds that an executive branch agency is wasting money, engaging in corrupt practices, or spending resources in ways that actually undercut the administration’s policies? According to the Democrats, nothing. Once Congress has appropriated money to USAID or any other agency, the Trump administration has no option but to spend it–and, apparently, to spend it in the ways that the unelected bureaucrats in that agency choose.
Of course, if you look at the appropriations bill that covers USAID, you will see no reference to transgender operas. Nor will the phrase “transgender comic book” appear. USAID’s funding is allocated in broad categories that sound noble. But where the money actually goes, Congress has no idea.
Secretary of State Marco Rubio has talked about this. When he was in the Senate he tried to exercise oversight over USAID. Employees of that agency would appear before his committee, and he would ask them how money is a particular category was being spent. Where is this money going? Who is being paid, and for what purpose? And the USAID witnesses would refuse to answer. They didn’t have to say; they were independent.
That is a constitutional absurdity and a policy outrage. And it also is one of the reasons why Democrats love the fourth branch. They use vague appropriations to enable spending for which they would never want to take responsibility. Can you imagine a Democratic House member trying to explain to constituents why he voted to fund a transgender opera in a foreign country? But no such explanation ever becomes necessary. The fourth branch is shrouded in secrecy and “independence.”
If you take seriously the fact that the President runs the executive branch–indisputable, under Article II–then, if the president learns that money is being wasted, that an agency has gone rogue, that its officials are pursuing policies that contradict those of the administration they serve–the president’s duty is to stop it. Stop the spending, fire the employees, neuter the rogue agency.
Of course it is true, as the Democrats say, that the President doesn’t have the power to abolish an agency that Congress has created. Thus, for example, President Trump cannot, by executive order, abolish the Department of Education. But he can run the Department of Education, and if that department is spending resources in ways that are wasteful or that contradict his administration’s policy goals, he can stop or redirect that spending.
The Democratic Party press has the current crisis exactly backward. The fact that President Trump is asserting control over the federal employees who work for him is a natural, if long-overdue, return to constitutional norms. The idea that the executive branch is somehow beyond the control of the president is the real crisis, one that has been long in the making. Ultimately, the Supreme Court will sort out the respective powers of Congress and the President with regard to the agencies that are established by Congress. In the meantime, President Trump needs to continue to assert his constitutional responsibility for the executive branch.
