Trump’s Federal Funding Fiasco
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Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk, and it's been a whirlwind week for the Trump administration after a federal funding fiasco of its own making. On Monday, Trump's Office of Management and Budget issued a two-page memo that seemed to pause large swaths of government funding. The memo's stated goal was bringing federal agencies into alignment with Trump's executive orders, including those focused on gender identity and diversity, equity, and inclusion programs.

It ordered agencies to review their programs for anything that might conflict with those actions. And in the meantime, quote, federal agencies must temporarily pause all activities related to obligation or disbursement of all federal financial assistance and other relevant agency activities that may be implicated by the executive orders.

The memo added that assistance given directly to Americans did not fall under its instructions and specifically named Medicare and Social Security as unaffected. By Tuesday morning, states, nonprofits and prominent Democrats were asking, what about Medicaid? And for that matter, what about lots of other programs? Meals on Wheels, senior centers, farm subsidies, veteran affairs programs, law enforcement and firefighters, etc.

The list goes on, and the website that states used to receive Medicaid payments from the federal government went down on Tuesday. A banner on the website said the system might experience delays due to, quote, executive orders regarding potentially unallowable grant payments. The general message of all of this? Very popular things are or may be in danger because of the president.

The OMB issued a follow-up memo on Tuesday trying to clarify that many of these programs would not be affected. The affected party sued, and Tuesday afternoon, a federal judge in D.C. temporarily blocked Trump's order before it was slated to go into effect, saying she'd make a more permanent ruling this coming Monday. And then, just as we were getting ready to sit down and record this podcast on Wednesday afternoon, the Trump administration rescinded the original memo altogether.

Though then his press secretary followed up by saying that just the memo was rescinded and not the actual order.

However you read this, and in this very moment, this is still a very live question, the issues raised in all of this aren't going anywhere. Probably most notably, the conflict over the separation of powers between the executive and the legislature. In fact, Trump said as much on the campaign trail when he talked about doing things along these lines. So what should we expect to happen next?

For all that and more, I'm joined now by Matt Glassman. He's a senior fellow at the Government Affairs Institute at Georgetown and previously worked at the Congressional Research Service in the Library of Congress. Matt, welcome to the podcast.

Hey, glad to be here, Galen. So that was a lengthier introduction than we usually have on these podcasts. And it's in part because there's a lot swirling around here and a lot that's still unknown, including the ultimate intentions of the executive branch here. But just to start out, did I miss anything important in all of that? I don't know.

I don't think anything particular. I think you hit the highlights. I mean, one question always circular around these things is what people are saying versus what they're actually doing. And that's where I'd start with this executive order. It has a long laundry list of arguments about woke politics and things the administration doesn't like. But what is it?

actually doing. And a lot of what it's doing is totally reasonable. It's asking agencies to submit reports about programs they're running and things like that. And that's totally unobjectionable. But then it also has this one section where it's going to put a temporary pause on we don't know how much of financial assistance programs the United States, you know, it's talking at one point about trillions of dollars, but then later the guidance is sort of narrowing that. And so there's a lot going on in the executive order. Some of it is very normal stuff. Some of it is very sort of polemical politics.

And some of it is sort of controversial questions of actual authority of the president. As somebody who's worked behind the scenes on Capitol Hill, how do these kinds of orders get made? Or is this pretty unique to the Trump administration and how this sort of memo came out?

Yeah, it's a great question because executive orders are one of the easiest things to write and one of the hardest things to write, especially when you want to implement them. There's this sort of urge at the White House sometimes to just write them in the White House and push them out. Because if you go and talk to the agencies and gather sort of opinions about what should be in them, you get all sorts of pushback, you get delays, you get leaks to the press.

And so this executive order itself really looks like it was written really just at the White House or at OMB without sort of pre-warning the agencies and gathering input from them. And what you end up with is a really sloppy product, because if you took this out to the agencies and the departments, the first questions they'd be asking is like, well, what exactly does it cover? I don't understand what the sentence means, how you need to clarify this. And in that way, it totally reminded me of the 2017 Trump travel ban.

which was also extremely sloppily written. And you can see sort of the fallout from it is that it creates chaos because if you don't consult sort of the actors and the agencies, you don't have a lot of expertise at the White House or OMB about sort of implications of these things the way you would if you showed this around for a week or two and gathered up that information. And so to me, the sort of takeaway here is that this was hastily and sloppily written without sort of

you know, a lot of forward thought. And you can see that later when they're trying to sort of not necessarily backpedal, people sort of backpedaling, but it could have been clarifying what they were up to here. Because from the original memo, it's like, wait a second, are they trying to pause Medicaid? What's going on here? Well, it also seems to be skirting around a much bigger issue, which is something that Trump talked about as early as 2023. And that's impoundment. Today, I'm proposing another new policy that will help us drain the swamp to stop

Biden's wasteful spending and crippling inflation. I will fight to restore the president's historic impoundment power. A lot of you don't know what that is. For 200 years, the president had the right to block unneeded spending and return the funds directly to the Treasury. They stopped that. Because he has suggested that his White House has the authority to impound the

funds appropriated by Congress. He's originally talked about it as a cost-saving measure. Congress appropriates too much money. We're going to clean up all of this bureaucratic overspending and maybe even provide a tax cut to the American public as a result. He's suggested that he has that authority. But this gets at a much deeper debate in American politics that goes back

decades, if not centuries. So what is the potential debate here over impoundment? And I should note their follow-up memo said that this is not impoundment, but there are aspects of it that seem quite a lot like it. They are pretty desperate for this to not be impoundment right now. Why do you say that? I don't think...

that this was the ground they wanted to necessarily fight that out on. I mean, it was open to it. But I think, first of all, vote isn't even sort of confirmed at OMB. And I think they probably wanted a much more sympathetic case for it than sort of a broad thing. It's like, oh, I have the authority to cut all spending across the government this way. Especially once they started backpedaling, I realized that they weren't looking to have this huge fight. At least it doesn't seem like it right now. The idea of empowerment is that the executive or the king

in the case of sort of Anglo-American history, is allowed to not spend money that the legislature appropriates. And this was certainly true in 16th century England. This was how it worked. The legislature, the parliament, did not appropriate money for the king and tell him what to spend. They granted him what was called supply. And that was the authority to just tax and raise money. And then he could use that money or not. The power of the parliament was the ability to deny that

to negatively say, no, we're not going to grant you supply and you don't get any money. That was a much weaker version of sort of the separation of powers we know in the United States. We've never had sort of a strong impoundment here. And there's always been a longstanding assumption that impoundment is not constitutional.

And this came to a head in the 70s when Nixon was trying to impound things and then Congress simply wrote a law called the Impounding Control Act saying you can't impound money. You have to spend it. And there's very limited exceptions to that and it requires the president to submit notifications to Congress if he's even going to try this. But

There's wide agreement in both court precedent among people in the legislative branch and even actors in the executive branch who are usually extremely sympathetic to presidential power, like the Office of Legal Counsel, DOJ. Even they have routinely said there's no such thing as a right, you know, a constitutional right for the president to impound funds. Now, there are dissenters to this, including Ross Vogt.

And he has strongly said that, no, there is an empowerment feature. This is really, though, at the heart of separation of powers. The one strong power Congress has is appropriations.

and the ability to set the funding and control the power of the purse and deny the funding. But if the president can either spend money that Congress didn't appropriate, as we've seen sort of Obama try and in some ways Biden try and Trump try over the previous three presidencies, or to not spend money Congress did appropriate, that's a huge swing in power. Just think about it. If Congress approves $900 billion for the military and some president, Trump or anyone else, says, eh, actually, I'd only rather spend $100 billion.

I mean, think of the leverage that gives them. It makes basically any law or any program that's funded by Congress, the executive has an opportunity to just destroy. And it gives them huge bargaining leverage and anything else, right? You want your program? Vote for my reform package. You want this? Vote for me. It would totally upend sort of separation powers as we know it and would put us more on the footing of sort of like 16th century England.

I appreciate how far back we dug into political history to get here. I think it does actually really inform the debate that's live today. So thank you. But for people who would argue that, that presidents do have the authority to impound funds,

Why do they say that? What's the legal basis for their argument? So, you know, they'll point to all sorts of times in American history when the executive hasn't spent money. Like we see this all the time. There's always leftover money in the accounts. And they're sort of famous historical examples of like Jefferson not spending money to build some ships in 1803. And just the fact that like

It's quite obvious that cost savings is something Congress wants. You know, if Congress gives the president $100 billion to build some new fighter jets and they only cost $93 billion, well, that's not empowerment, that's cost savings. And I think that sort of differentiation is what people sort of, in my view, pretend makes this reasonable. But it's always been the case that Congress has accepted cost savings. They accept that as a reason in the Empowerment Control Act to not spend all the money. But there's a difference between that.

And the executive saying, I have a policy difference with you, so I'm not going to even attempt to do what you want to do with this money. And of course, the main reason people want this is it would make a president tremendously powerful. And when their person is in the presidency, they're open to arguments that would enhance their own power. But it's a pure power grab. There's nothing sort of more bedrock to, you know, sort of Anglo-American politics.

Separate powers than the idea that the parliament controls the purse or the Congress controls the purse. And so I don't give it any credence. The founders were not interested in it. There's no sort of legal basis for it in the United States. And it's never been anything but sort of laughed out of existence until Nixon sort of pushed it to the limit.

We're getting way ahead of ourselves here, and I do want to take a step back. But just to take it all the way to the Supreme Court for a second, do you think that if the Trump administration were to more vigorously try to impound particular funds, it seems like they're backing off here, although in this very moment, it's still a little unclear where this case is going?

Do you think that there are justices on the Supreme Court that are amenable to saying that presidential impoundment is constitutional? So I would be very skeptical of that. It's obviously always a fool's game to try and predict what the court's going to do, especially this court. And it's absolutely true that this court, and particularly the right-wing members of this court, have been very sort of sympathetic to presidential power. But this cuts right at

the separation of powers in a way that I don't think they'll be interested in. People talk about the unitary executive, for instance, right? The idea that the president has complete control over the executive branch, can fire anyone at any time. And even under that theory, it doesn't really get you to appropriations, which has always been sort of a core power of the legislature.

And as we've seen over the last decade, the court is sort of sympathetic to this idea that there are core powers and the appropriations power being the core power of the legislature. You know, you can imagine from a partisan point of view, a 7-2 decision where sort of Thomas and Alito are somehow taking the side of the administration here. But this feels to me like a big slapdown from the court.

not only do I suspect they would say there's no sort of inherent constitutional right to impoundment, but I think they would also sort of say that the statutory Impoundment Control Act is totally legitimate on that basis, that this is the core power of Congress. And I think it's just not a good answer to the question. So if Congress appropriates

money for Social Security, mandatory spending, can the president just decide he doesn't like Social Security and cancel the program? And that's sort of hard to get around. And there's sort of this wiggle room in there where sometimes Congress doesn't mandate money be spent, right? Where Congress just provides the amount of money for the Secretary of the Navy to spend on personnel, and they're going to choose how to divvy it up.

And that's a little different. And you can understand some wiggle room there for sort of things like reprogramming money to different functions or maybe finding cost savings. But when Congress says here is, you know, $100 million, you know, not, you know, everyone over 65 has a right to $1,000 a month and we're going to pay it. Like for the executive to be able to impound that would be to say he could just cancel any mandatory program. And I just don't think the courts will buy that. The White House has said that this is not impoundment.

a close reading of the original memo, and I'm not a legal scholar or a historian of separation of powers, but it really sort of sends you in circles when you start to read this because parts of it read as empowerment and

And then at the same time, it says, but don't do anything that's not legal. Only do these things in accordance with the law. And if the law, as written in the Impoundment Act, suggests that the president can only impound things for a short period of time if he alerts Congress and basically Congress is OK with it. So this doesn't seem to be going through that avenue. But at

that at the same time it does. So is this impoundment from your close reading? It's certainly in violation of the Impoundment Control Act, which requires congressional notification for any sort of delay in sort of the apportionment of funds, right? That would be called a deferral. You know, the Impoundment Control Act sets up two branches, right? You can think of it as one is if the president decides we don't need this spending, you gave me too much money, I don't want to do this. He can propose to say, just take away the spending, rescind it.

And then Congress can either do that or not. And if they don't do that, 45 days later, he's got to start spending the money. The other half of it is called deferrals. And this is sort of temporary delays. And there's only three reasons you can temporary delay. One is for cost savings if things changed. Second is if there's contingencies that have come up. And third is if there's a law that actually comes in and changes things. And then the Empowerment Control Act specifically says anything but those three reasons are no good for deferral. You have to spend the money.

And so what's going on in the actual memo looks to be sort of a deferral, right? There's going to be a temporary freeze in the spending. And their argument that this isn't sort of for cost savings or contingency seems ridiculous. So it seems at the very least what they're doing here is a deferral under the Empowerment Control Act, which means they need to let Congress know what's going on. And so...

I wouldn't necessarily say these are impoundments because it's this temporary sort of deferral that they're setting up. And that strikes me more as something under the Impoundment Control Act. Now, the fact that they didn't notify Congress is like, well, what's going on here, boys? Like, are you trying to just like assert your authority to do this? But the next step in this

which is obvious from the memo, is that they want to sort of cancel this spending. The way they're sort of polemical in the first couple paragraphs about sort of, you know, woke programs and runaway DEI stuff tells me that this is sort of like a first step towards an actual impoundment and sort of cancellation of funds without the approval of Congress. But as it's written, like what they're actually doing is temporarily deferring it. Now, when you temporarily defer it under the Empowerment Control Act, you're saying it's going to be spent later, right? It's being deferred for sort of

you know, these contingencies or for cost savings. Within the executive branch, the president can prioritize things, the agencies can create policy that are not found in actual law. This is a big debate, sort of a debate between liberals and conservatives that has lasted basically as long as agencies have been around in this country is how much independent authority do they have. And so is

Is there an argument to be made that they're trying to say, OK, agencies, if you were spending money on DEI or spending money on, you know, gender care or whatever it may be under the last administration, you can't do that anymore. And it's like never stuff that went through Congress. It's it's policy that was created in the actual agencies. Is there anything wrong with doing that?

Not inherently there's not, right? Congress leaves a lot of discretion to the executive branch. You know, when we authorize $50 billion for military personnel in the Army, Navy, and Air Force, right? A lot of what to do with that money is set out like different buckets of money. But within those buckets, there's a lot of discretion and a lot of room for the executive branch to do what's necessary to sort of achieve the broad congressional policy goals. And so most

DEI offices in federal agencies are not there because Congress passed a law demanding they be there. And if Congress had passed a law demanding they be there, there'd be no way for the president to just abolish them. So a significant amount of programs, or at least how programs are being run in the executive branch, do come from the discretion that naturally has to be in the executive. Congress can't write exact laws for everything. And so, yes, if you're sort of retooling those programs or adjusting them, there's going to be some changes in how money is spent

potentially some cost savings. If your idea is these programs, the old administration we're running are totally worthless. Like we don't need these and we're getting rid of them. Then, then there's definitely room for moving money around. You know, a classic example would be something like desegregating the military by Truman in the forties, right? Congress didn't say one way or another, what we should have a segregated military or not. And it just always been that way since the civil war. Truman comes along and says, yeah,

we're going to desegregate. We're going to have an integrated military from now on. There's nothing in law about that one way or the other. He decided to do it. Can he then spend some money of military personnel to sort of help them desegregate, right? If it means having to sort of train officers about racial interactions and things like that and how to defuse things, of course he can. And these are the sort of things that does have executive discretion that cuts across sort of financing of things for sure. So is this what they're going to fall back on and say is their goal here? Or is it pretty clear from the original memo that

No, they were trying to stop things that were actually apportioned by Congress specifically to be spent in accordance with the law. It does feel like, you know, and I haven't checked the details, but it does feel like what they were trying to do went beyond even sort of what's even legal to sort of try to impound.

which is mandatory money. If Congress sets up something that's mandatory money that either must be spent or is like a formulaic based thing like social security or a highway transportation funding or SNAP funding or farm subsidies or things like that, that stuff just can't be canceled. You don't even have the option of doing that for mandatory spending. So absolutely, I felt like it was broad enough to absolutely encompass that stuff and be sort of just like plain on its face, unconstitutional. And that's why I thought maybe they were getting ready to sort of just

bring a frontal attack on this and just make the challenge now for impoundment. They've backed away from that, right? And again, the whole memo is couched in accordance with law. And so they can always fall back that the memo is never telling anyone to violate the law because you're only supposed to carry this out in accordance with law. But that's like basically impossible to do across so many programs that are relying on stuff mandated by Congress to be spent.

We're starting to get into talking about the intention or strategy here. And I know that you're a poker player. And so you know a lot about tactics and game theory. And so I want to ask you about that. But first, we're going to take a break.

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Matt, as you suggested, when this memo first came out, plenty of people thought this was the White House coming out swinging, potentially creating a case that would quickly go to the Supreme Court, making arguments that impoundment is constitutional and that Trump would be basically canceling federal programs in accordance with his own ideology. It seems that they've backed off significantly from that, if that was ever the goal. Of course, I'm not inside the room. I don't know what's going on.

What does it seem like now is the goal with all of this? How do they proceed as pertains to impoundment or whatever might be legal in terms of how they can spend money differently?

I mean, I think sort of the things that are obvious that fall under where they're left after, I don't know, with the three memos plus the sort of tweet from the press secretary, they're left one place, which is sort of the dismantling of the DEI outfits in the various agencies and places like that, that are not there sort of statutorily. And the president has sort of broad discretion to rearrange things.

the civil service and, and remove offices like that. And so any funding attached to them, uh, would be sort of a relevant thing for a potential sort of rescission here or, or deferral for cost savings purposes. If you decide this stuff is not, is not worth it anymore. So that's sort of like the very narrow spot I can imagine. But, you know, there's also the political side of this, uh,

And sort of motivations don't have to be sort of all policy. And I think often with Trump, they're not. You know, he is very attuned to sort of communication strategies and political strategies. And a couple of things you see here, one is that sort of when you make these things broad, right, like I'm going to, you know, freeze all programs, right? That is really easy to say because everyone's like, yeah, freeze all programs. Well, you know, we'll cut $3 trillion out of the federal budget. And people who want to cut stuff love talking about top line numbers like that.

because you don't have to talk about specific programs, right? But then when you get down to it, right, and we're actually sort of freezing things and programs are being frozen around the country, now is where the constituencies for those programs come out. And so, you know, Trump sort of consolidating with either his voter base or with members of Congress, the general idea that we're going to go attack this stuff head on, we're going to take on this stuff, and we're going to save a ton of money, that's popular. But then when you actually come down to, you know, whoops,

we didn't mean it because you're actually touching programs that hit constituents, that's really dangerous. So that's one reason they backed off. I think there's also the possibility that this was some sort of trial balloon. I don't think the sort of White House is really sort of in like, oh, I'm going to own the libs as sort of the basis of their political strategy. But I do think

You know, Trump loves to test the limits of his authority, both to see what kind of pushback he gets and to see what kind of pushback he gets with his own party in general. And I think here they got a ton of pushback. So whatever plan they had for this, it's hard to tell if it was like a trial balloon that had to get walked back or if it was just sloppy writing that they need to clarify or some mix of both. It's pretty hard to believe that sort of the Medicaid portals went down, right, as the same day this came out.

But it's also not that hard to believe that they didn't intend for that to happen and sort of nervous administrators, you know, read this memo and just did what they thought the memo intended because it was sloppily written. Yeah, we're talking about the politics here, which...

are sort of where more of my knowledge comes into play. And you're right. Recent polling from, for example, the AP suggests that around 60% of Americans think that inefficiency and red tape are major problems in the federal government. However, when you start asking about things like social security, education, poverty assistance, the public overwhelmingly supports these things.

And on top of that, we see a lot of skepticism around two things. One, the president making his own decisions freed from Congress and the courts when it comes to enacting policy. And two, a lot of skepticism of the influence of billionaires.

And in an environment where Trump seems to have more goodwill from the public than he's had at any point, maybe over the past nine years, it seems like Democrats see an opening in, oh, Elon Musk is crafting, you know, poverty assistance policy. The richest man on earth is in the president's ear trying to take away things from veterans, things from farmers, things from the poor, things from poor children, things from senior citizens. And

And that seems to me a dangerous place for the president to be when it comes to public opinion.

I can see that. I think that Trump himself is reasonably popular relative to where he's been in the past. He's more popular now than he was in his first administration. But it's hard to say that sort of like billionaires are popular. And sort of Trump has to balance this idea of having Musk on his side, who is incredibly powerful with his media empire and sort of a darling of a very small segment of the right right now, of a techno right, but potentially the kind of villain

that is the last person you want to have being seen as sort of your consigliere who is actually running the show. And, you know, as you say, it's heightened when Musk is sort of proposing things that, you know, can be portrayed or actually are sort of billionaires grabbing like bread out of the mouths of peasants, right? And that's not particularly appealing, I don't think, for Trump. And when you throw on sort of being overshadowed by Musk, sometimes you wonder if Trump is now in a position where he has the wolf by its ears.

and he can't safely hold on or let go. I've always noticed Trump as someone who is a little hesitant to get in fights with people who are actually as sort of media powerful as him. You notice this with Taylor Swift. He's never really gotten into it with her. And you notice it with Musk too. And those two things make me wonder if he is sort of very nervous about actually making enemies out of the people who have as much media clout as him. Because the one thing Trump is

unparalleled good at in politics is getting attention. And I don't think that can even be debated. But to make an enemy out of Elon Musk, would you call that into question? I think it's pretty clear where the American public stands on, you know, should we fund veterans affairs programs or should we fund, you know, Medicare or things like that? But I think it's a little more complicated when we talk about presidential authority.

The polling, as I just suggested, shows that Americans are skeptical of an overly powerful executive, one who's freed from constraints of the courts and Congress in what they're doing. But there's also a question of salience. A lot of the controversial things that have been in the news since his second term began are things like, OK, is birthright citizenship constitutional?

Democrats are arguing about the power of the president and what is legal or constitutional and not really arguing about the meat of the thing. On many of these debates, it never makes it out of the is this legal, is this constitutional, norms, democracy kind of thing. In this debate, there's both of those things at play. There's the norms, there's the legality, there's the constitutionality, and then there's also should we be feeding poor children? And it seems like

Trump gets a lot more nervous about the debate. The White House is a lot more reactive and inclined to take steps backwards when the debate gets to that point. Like, should we feed poor children? And he doesn't really care at all about the debates over the Constitution or norms or democracy.

First of all, you'll never lose a bet if your side is the American public doesn't care about process as much as they care about substance. That's just a natural sort of voter inclination. They want the programs and they want what they want, and they don't really care how the sausage gets made in government. Now, that can be to their detriment.

Right. Sometimes if the process gets too out of whack and you end up with sort of a runaway president or, you know, a runaway Congress, too, at times that the president's too weak, that's not going to be great for governance. But people don't care. They want their substantive results rather than sort of any process. But I do agree with you that Trump is much more attuned to sort of policy centrism than I think people believe.

Trump has sort of these authoritarian tendencies and he wants to be the decider. But when you get right down to it at a policy level, Trump often finds himself as the centrist pushing against Republicans. Right. You can see this most clearly with abortion. Right. Where Trump ran the hell away from his own party in a way that most people thought was not even possible in the Republican Party. Right. And I think you can see it on other things, too. Trump has this inclination towards pragmatism when he has to compromise. Right.

In 2016, I think he ended up being seen as more of a centrist than Clinton was, closer to the center. And his sort of instincts are not to do things that are losers politically, even if they're sort of part of the centrality of the Republican Party. And that sort of freedom from his party is one of his chief political advantages. And that's a completely separate dimension that his sort of like authoritarian tendencies are.

What you use those authoritarian tendencies for can be liberal, conservative or centrist in the middle. And I see Trump as very much not much of a believer in separation of powers and really a presidentialist who would love nothing more than to be king, which may not be that different than other presidents. So they don't express it as much as he does or try to push the boundaries as much. But that's not really sort of.

a way to understand where he's going to land in any given policy. And that might be totally different. And so do you think it's fair to conclude that Americans are

don't care all that much about the democratic norms? I mean, I think that, yes, at a basic level, I think most people don't care about process and they don't care about norms and they want to win. And it's totally understandable. And it's very easy to feel that way when you've lived in a system that has always had sort of, uh,

strong guardrails perpetuating itself, and a separation of power system that has worked, right? The intention of the system was never to let anyone get total control of it, and that has worked beautifully. It makes it easy to just care about substance. I think a lot of people who've grown up in less stable democracies have had to deal with the idea that

empowering certain people brings the whole system into question. And I don't think anyone alive in America has ever really felt like the way they feel about particular substantive issues are going to call and question things at a systemic level. Although I kind of feel like more and more people are sort of feeling that way now.

And I mean, look, you know, I don't know what the typical person thinks. All I know is in that last four days of Biden's, you know, being in office in the first two of Trump, I was like, who the f*** do these guys think they are? Right? I'm just going to decide what the Constitution means, right? The 28th Amendment. Why not? 14th Amendment. We have to really upend that, right? Why not? And that to me is sort of...

you know, a little bit alarming at a systemic level, but also just as sort of a basic how we adjudicate things in a democracy. I think that, and I don't know, maybe we're getting too far afield here, but I also always ask people like, why do we have a Congress? And their first answer every time, every time is that it's the only alternative to having a dictator, right? It's the only thing that keeps the president in check. And that's like a really sort of like

minimalist, poor view of a legislature. But a legislature is actually like a really good way to adjudicate sort of collective decision-making, right? It's much more diverse than the presidency ever will. I don't care. Joe Biden and Donald Trump could never represent the country the way 435 people can, right? It allows for sort of broad opinions in there and local representation and public deliberation about things.

And I think more people would do well to have sort of understand why a Congress is good rather than why it's sort of a necessary evil to stand in the way of dictatorship. Yeah, I mean, that gets us to another pretty robust area of public opinion, Matt. I both love your energy and I love that you just keep teeing me up to cite polling data, which is that Congress

Congress is unpopular, right? I mean, Trump is pretty unpopular as far as honeymoon period presidents go. He's net positive seven points on approval. But I mean, Congress, they are net negative 35 percentage points. And they've been that way for about the past decade and a half, if not longer. And so in an environment where

Congress's approval is in the low 20s. Do we get a more vulnerable separation of powers? I think it certainly is, especially in the modern system where sort of public opinion is now a strong driver of sort of presidential mandates and popular legitimacy. You know, the original presidency in the 1780s was not

designed to be run by popular legitimacy, just in the way the monarchy wasn't. Washington was very sort of quizzical about what he should even do as president. Should he give a lot of public addresses or should he just be sort of tucked away? But the modern presidency is built on sort of popular approval. And that's why it's so difficult for presidents who win the presidency without winning the popular vote or have low approval ratings. But Congress is

has never had a good approval rating. And you said the last 10 or 15 years, try the last 200, right? We have members in the 1840s bemoaning that they're never going to get credit for what they do. And all you can do is try and do good things. In our lifetimes, Congress has been above 50% approval once exactly. And that was after 9-11. They got to 84%. And I kid you not, the next month, they were down to the 40s. Congress is never popular.

And the reason it's never popular, and people will give you a million reasons for this. They'll say, oh, it's greedy politicians, special interests. All they want to do is get reelected. They only care about corporations. They fight. They don't like conflict. All they do is argue. It's slow. They'll give you every reason in the sun, and it oil boils down to one thing. People are sincere when they say that stuff. But underneath it all is people hate losing. And you lose in Congress all the time. The system is not set up to win. Right?

right? It's set up that most time you're going to lose and there's a million ways to lose. They don't take up your issue. They take it up and do the thing you don't like. They take it up and do the thing you like, but not enough of it. And people just complain out their ears. And this is not unique to the U.S. Congress. It's not unique to our current age. Legislatures are never popular. Now, if presidents want to go after public legitimacy,

right? And democratic legitimacy and play against Congress, certainly that's easier in the modern age. They have better media access, right? They are empowered a lot more. I mean, part of this is Congress's fault. We may have empowered the presidency too much, but the reasons we empowered the presidency throughout the 20th century were perfectly reasonable reasons, but we may have built something a little too powerful. I have been, probably for the last 15 years, worried that partisan forces are just building something that's

becoming an elected monarchy. It's becoming that sort of Charles I monarchy.

model before the English Civil War, right? Where their answer to someone doing something they don't like in the presidency isn't to restrict the presidency. It's to get their man or woman into the office. And that's a very dangerous thing to do. There's also structural problems. Congress can empower the president with a majority vote. But to take away power from the president, they need a supermajority because he's just going to veto it. And so things sort of just keep ratcheting up. But no, I mean, and look,

Congress doesn't have to distinguish itself in order to be powerful. They don't have to be popular. They can still be powerful. And like you said, I think a lot of people think Congress should rely on the courts to fight the president. A Congress with a real backbone would use its own power to sort of

snap the president into line. And so you see this, you saw this a little bit with the debate over ethics at the courts, right? You had some Senate Democrats talking about using the appropriations process to sort of force Roberts and the Supremes into an ethics code. Have I ever seen that done in a strong way? Not really. Have I seen committees zero out funding for programs because they were angry at a secretary? Yeah.

Just as a little shot across the bow, it wouldn't be the worst thing in the world if the first drafts out of the House and Senate for the EOP funding in the 26 bills was zero dollars. Right. Not because they're ever going to actually defund the EOP, but just to let them know, like, we're here, too. And if you don't want your step and you want to play hardball, there's another set of hardball. Yeah. Your comment about the increasing power of the president, I think, is really visible just in Strasburg.

sort of the way that Trump has touted how quickly he signed executive orders, you know, something in the range of 60 within the first 10 days. Whereas for somebody who, I guess, first started studying politics and political science in college during the Obama years, I mean,

there was a lot of consternation amongst conservatives about how many executive actions Obama was relying on in order to try to advance his agenda. And now it's a point of pride, right? Because it's we're winning. We're doing the things that we want to do. And some of that consternation about how much power the president should actually have seems to have faded quite a bit, at least from the public debate. And so I want to end there, which is where do we go from here? I think

A lot of observers expect debates over the separation of powers to continue over the next four years, if not beyond that. So what does the Trump administration do next? And do the guardrails as outlined in the separation of powers hold?

Great question. And I do, I mean, I do want to, your perspective with Obama is important because one thing that's true is president Trump didn't invent sort of presidential aggrandizement of power. Uh, it's been true of all presidents. You can go find this with Lincoln too. Uh, but there's something about what's going on in the 21st century that really feels to me new. Um, Obama, Trump, Biden, and now Trump again, all seem to be finding ways to encroach on the appropriations power. Uh,

In ways I would not have expected former presidents to do. Obama, directly against the will of Congress, tried to expand Medicaid under the ACA.

Trump declared an emergency and transferred Milcon funding to build his wall that Congress had explicitly not done. Biden tried to do that massive student loan repayment program. And these are all areas where you're talking about massive amounts of federal expenditures. And it really is sort of that last wall Congress has of control of appropriations. And so this idea of empowerment, again, is the flip side of that. It's the ability to not spend, but it falls in line with those things. And so absolutely, I think, you know, Trump...

believes in sort of this get it done by myself ethos. If you notice, Trump doesn't even have much of a legislative agenda, right? We got the reconciliation bills. There's the tax bill. There's

the border authorities he wants, and then sort of the repeal of the energy stuff from the Inflation Reduction Act. But beyond that, like, what's his legislative agenda? It's mostly just this executive orders agenda, which is a double-edged sword. One, it allows you to do things you don't have to compromise about, which sort of presidential candidates are big on sort of talking about their plans and what they're going to do. And then you show up at Congress and you got to compromise. They don't want that. But it also is flimsier. You know, if you want to do something permanent in American politics, you got to put it in law.

Or otherwise, the next president is going to come in and he's going to undo it on you from back. So I always think of executive orders, the saving grace of them from a congressional point of view is that like they're flimsy, right? You want to do a border wall? Go ahead. Try and steal the money and do it. But it's not going to last because the next president is going to stop it. And so it's still the case that the best way to make permanent, durable changes in public policy is to get them into law.

That does not – that's sort of cold comfort with the separation of powers because I do think we are approaching a situation where the presidency is so dominant over the political parties and the parties are so polarized that falling in line behind your president is more important.

than any sort of separation of powers. And that is a dangerous place for us to be going. And again, I don't want to make this a lot to be a Republican thing. I think they are more guilty of it right now, but they certainly are not the only ones. And the Democrats would jump at the chance to be in the presidency and be able to do stuff this way by fiat as well. All right. Well, we're going to leave things there today, but I hope to speak to you again soon. Matt, this was really instructive. So thank you.

Yeah, thanks for having me. My name is Galen Dirk. Our producers are Shane McKeon and Cameron Tretavian. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet us with questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we'll see you soon.

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