Whatever Trump and his advisors say, I know he won’t be able to remake Washington easily and swiftly.
President-elect Donald Trump is returning to the most powerful job in the free world with the putative mandate to take on the 3 million employees of the “deep state,” an insecure border, the annual $800-billion government contracting-industrial complex, Big Pharma and “wokeness.” But his administration will face the same limitation that my colleagues and I did when we responded to the global financial crisis in 2008: Every action we took had to be justified with an answer to this question: “Under what authority?”
Trump has expressed admiration for the dictatorial power wielded by authoritarian leaders such as China’s Xi Jinping and Russia’s Vladimir Putin. But his predilection for aggressive executive actions in the U.S. will ultimately be stymied if it is not grounded in defensible legal authority and process. Just because Trump and his advisors say they can do something doesn’t mean they can, at least not easily or swiftly.
In 2008, I worked with Treasury Secretary Henry Paulson. He did not have the authority to prevent the calamitous collapse of Lehman Brothers, and even after Congress authorized unprecedented executive power with the $700-billion Troubled Asset Relief Program and Newsweek dubbed him King Henry, pundits and citizens alike complained that we weren’t extracting a sufficient pound of flesh for the assistance the George W. Bush administration provided to the banks, whose flawed risk management was a root cause of the crisis. Our response had to be, however, “Under what authority?”
One item on Trump’s agenda, the much-heralded Department of Government Efficiency — DOGE — is a case in point. Its co-leaders, Elon Musk and Vivek Ramaswamy, penned an op-ed in the Wall Street Journal in which they asserted that they would be “doing things differently. We are entrepreneurs, not politicians. We will serve as outside volunteers, not federal officials or employees.” The inherent problem with this approach is that none of their proposals can become reality without an authorized internal government mechanism.
This is where Russell Vought, Trump’s nominee to oversee the powerful Office of Management and Budget, comes in. He has spent the last four years honing plans — and legal justifications — for the expansive use of executive power that Trump wants and that Vought refers to as “radical constitutionalism.”
Vought’s playbook includes the bold maneuvers that DOGE plans to employ, according to the Wall Street Journal op-ed. One is budget impoundment, which Trump has already espoused. The idea is that no matter what funds Congress appropriates, the president can choose which to spend, creating an effective line-item veto. Such a veto was expressly outlawed under the Congressional Budget and Impoundment Control Act of 1974. Vought, undaunted, has forcefully asserted that this law is unconstitutional.
But even with three Trump-appointed justices on the Supreme Court, giving its conservatives a 6-3 majority, no one can be certain that the judiciary will serve as an unfettered rubber stamp for the more audacious actions. In fact, during Trump’s first term, his administration notched only a 23% legal win rate when it challenged federal agency policies and actions. (The historical average is around 70%.)
We should expect Trump 2.0 to improve its bureaucratic effectiveness, not least because the Supreme Court last term unraveled the so-called Chevron doctrine, which had provided that agency decisions be given deference so long as their statutory interpretation was reasonable.
However, if Musk and Ramaswamy believe that the Chevron decision means they can successfully void thousands of rules with a single stroke of Trump’s pen, akin to nuking the administrative state, they’ll find out that deregulation looks a lot more like trench warfare. To avoid giving their opponents judicial ammunition to claim a process foul, repealing the rules they don’t like will require following the tedious procedures of the Administrative Procedure Act.
Certainly, Republican politicians and voters have demonstrated their devotion to Trump and a clear willingness for disruption in Washington. However, there still exists the Senate minority and the filibuster, a free press, a sizable segment of the business community that will not profit from changes to the status quo, the American political penchant to “throw the bums out” in the next election — and most notably, the rule of law to act as boundaries on an imperial presidency.
Trump undoubtedly will be able to upset government norms, but he will not be able to fully refashion democratic institutions in his image without a sufficient response to “Under what authority?”
Stephen A. Myrow served as a senior U.S. Treasury Department official in 2008. He is currently managing partner of Beacon Policy Advisors, an independent policy research firm based in Washington.
