Brushfire of the Vanities

Trumpism is proving a lot more effective than I could ever have imagined.

You’re reading this Tuesday note on Wednesday morning at least in part due to President Donald Trump. I had a pretty good sense of what I wanted to write when news about Trump’s meeting with Israel’s Benjamin Netanyahu started to break. By the time I was ready to put finger to keyboard, Trump had announced that the United States would “take over the Gaza Strip” in order to redevelop it — presumably not for the benefit of the Palestinian Arabs who would be displaced in order to make way for the reconstruction. All this threw me for a loop.

There’s something about these first three weeks of the second Trump administration that stymies hot takes. It wasn’t like this the first time around. Back then, every new development positively invited interpretation and a novel theory of what was really going on. Today, one just feels hopelessly slow. What can one possibly say when whatever the huge topic of the day is almost certainly going to be overwhelmed by tomorrow? Trump is like a brushfire spreading at an incomprehensible pace.

So I’ll forego commenting on the foreign policy implications of this latest (staggering) development and instead scribble down a few notes that I meant to share in the first place. And they have to do with the constitutional power struggle between Trump and both Congress and the judiciary that is increasingly coming into focus.

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Let’s start with something concrete and then move on to some questions that arise. Over the weekend, Trump¹ took a huge swing at USAID — the United States Agency for International Development — suspending several high-ranking officials and ultimately handing the management of the bureaucracy to Secretary of State Marco Rubio. He had already halted most of USAID’s work by an Executive Order freezing all foreign aid. Right before the Gaza news broke tonight, it was announced that he was laying off most of the agency’s staff. He hasn’t yet formally collapsed the Agency, but has all but destroyed it.

Why is Trump doing this? I think Adam Serwer quipped early in the first Trump administration that “the cruelty is the point.” Except it would be misguided to think that cruelty against foreigners is the point here. No, foreigners are quite besides the point. The cruelty is directed at federal employees themselves, who are seen by many in the Trump administration — not wrongly! — as implacably hostile to their goals and agenda.

Russ Vought, Trump’s pick to run the Office of Management and Budget, has not been shy about just how he plans to suborn and possibly dismantle the permanent bureaucracy which serves in the Executive branch. “When they wake up in the morning, we want them to not want to go to work because they are increasingly viewed as the villains,” he said last year. “We want to put them in trauma.” Many would resign, and those that stay would be cowed into submission.

I had heard about Vought’s views before Trump assumed power, and had written them off as the kind of hyperbolic language that frustrated intellectuals use when describing their lurid power fantasies. I never bothered to think about how it could actually be pulled off. Now that I see it happening, it’s a brutally effective approach. Breathtaking, really.

Can Trump really dismantle the bureaucracy like this? I… think he can. As my colleague Philip Bump points out today at the Washington Post, there’s not really anyone who can stop him. Congress has passed laws — like the one in 2022 which mandated that the Executive give it 30 days notice before firing any Inspectors General — that are openly being flouted. Indeed, USAID was created by a law passed by Congress in 1961.

Many of Trump’s moves are or will be challenged in the courts. But the reality is that the wheels of justice turn comparatively slowly, and the Trump administration is creating facts on the ground right now. What will be effective redress if and when the Supreme Court rules that Trump overstepped his limits in disbanding USAID? To reconstitute it? Good luck with going back in time.

But isn’t what he’s doing illegal? Congress writes the laws, the President executes them, right? This, to me, is the crux of what makes all of this so endlessly fascinating — and explosive. We mere mortals like to imagine that “the law” is something that simply exists, that we are a nation of laws, and that all of our institutions are somehow bound by these laws. But the problem is that at the level of highest sovereignty, the rules don’t quite apply like you might think they do.

There’s a gray area in the U.S. Constitution between writing laws (which describe the goals that are to be achieved) and enforcing the laws (deciding how to achieve those same goals). Perhaps ideally, laws would be written in such a way that steered clear of any instruction for how to enforce them. But in practice, Congress has been mandating that agencies be set up in the Executive branch since the start of the Republic. And the courts have largely gone along with this, reading the so-called “Necessary and Proper” clause of Article I of the Constitution as providing ample cover.

Yet while there’s precedent for this interpretation, it has remained a point of friction. For example, when is Congress arrogating too much power for itself by intruding on the Executive’s prerogatives? Certainly if it were to start creating too many agencies completely independent of the Executive’s will, that would be an encroachment — and would do some violence to the separation of powers.

As it turns out, people like Vought believe that this encroachment has been steadily increasing, and has reached intolerable levels. Go back to USAID. Is it right that Congress mandated that an independent agency be set up to administer foreign aid? Would it not be cleaner for it to simply allocate funds for goals and then leave it up to the Executive to execute? Over the weekend, Secretary Rubio accused the agency of insubordination to the Executive’s foreign policy priorities — a charge that has almost certainly been true over time. And some Congressional leaders are explicitly crying bloody murder about the President encroaching on USAID’s independence. To critics like Vought, this is all evidence of gross Congressional overreach.

Fine, but Trump can’t just… ignore Congress. Erm, why not? To get a fuller sense of what might be going on behind the scenes, give this piece by Jack Goldsmith and Bob Bauer a close read. They argue that the Trump administration’s plan is to push the Legislative branch definitively out of the business of micromanaging the Executive. Whether you see it as an Executive power grab or a healthy constitutional rebalancing is not the important part. It’s the method of achieving this goal that’s at the heart of the story.

One theory, Goldsmith and Bauer say, is that Trump is defying Congress in order to set up a bunch of test cases which will ultimately be decided by the Supreme Court. If the cases are properly chosen to highlight where Congress has overstepped its bounds, the Court might well rule in the Executive’s favor, shifting the power balance legally.

But Goldsmith and Bauer note that the way in which the Trump administration is broadly and indiscriminately assaulting Congress’s writ suggests another possibility: that this is a move of pure intimidation — once again the product of the evil genius Russ Vought.

This pattern echoes a philosophy — “radical constitutionalis[m]” — that Vought laid out in a 2022 essay. The essence of radical constitutionalism is that “[t]he Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years . . . ”

Vought strongly implied that an element of radical constitutionalism is to instill fear in the Supreme Court that the presidency is prepared to resort to outright defiance of its decisions.

How many divisions has the Pope? The idea here is that the Supreme Court will blink rather than rule in such a way that its writ will be ignored. And by demonstrating no compunction about ignoring Congress, the Executive is building credibility. Call it the madman theory of constitutional warfare.

So is the Republic doomed? Honestly, it’s far too early to tell how any of this will play out. And our Republic has survived this kind of white-knuckle constitutional contestation before. We who have grown up in the post-Nixon era have come to accept a lot of the settlements of the 1970s as unalterable features of our legal order. But democracies are volatile things, and we shouldn’t expect ephemeral things such as norms to hold indefinitely.

Even though we Americans distinguish ourselves as one of the oldest modern democracies and pride ourselves in the longevity of our Constitution, it’s a schoolboy delusion to understand our history as some kind of stable continuity. We’re not that different from other modern democracies that fetishize their written constitutions less and therefore revise their terms more easily. It’s just that since our constitutional order is much harder to amend, our adjustments tend to be rougher affairs.

I think we’ll make it. But do fasten your seatbelts.

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A few weeks back, I wrote that it seemed like Trump had cleared the ideological field on the Right in such a way that thinking about the future on the Right was far more promising than on the Left. I still think that’s largely true. The Left remains hidebound, and the terms of its internal debate strike me as even more irrelevant than they did when I last wrote.

That said, I do think I underestimated the scope of the Trump brushfire. It’s not just clearing the ideological dead wood. It’s consuming all sorts of other things in its way. It’s truly awesome. And believe me, I don’t say this glibly. It’s awesome in the sense that it inspires awe, which is a form of terror.

1. Trump, not Elon Musk. Far too much coverage is focusing on the intentions of the henchman, when this is actually a story of Trump’s work being faithfully executed.