In class, I like to ask my students to debate, Did the Framers expect Congress or the President to be in charge of foreign policy? Those favoring the chief executive cite his designation as commander-in-chief of the armed forces and his power to receive foreign emissaries. Those favoring Congress argue that it has the power of the purse, can declare war, and can regulate domestic and foreign commerce, which was the biggest foreign policy concern of the early Republic. As an Article I guy, I side with the Congress, but the conventional view, best articulated by Professor Edward Corwin many decades ago, is that the Constitution was an “invitation to struggle” over control over foreign policy.
In fact, recent presidents have mostly won that struggle. Especially since World War II, Congress has recognized the existence of foreign threats to the United States and the acute dangers of nuclear war and has largely acquiesced to presidential control. Lawmakers tried to constrain the war power but otherwise enacted measures giving presidents broad emergency powers.
Domestic policy, by contrast, is clearly dominated by the legislative branch. It writes the laws, creates the agencies and gives them missions and powers, and ultimately controls them through Constitutionally-required appropriations. The skilled, nonpartisan Congressional Research Service explains this power here. But if you want the 67-page version, with all the footnotes and details, read this.
Notwithstanding [a favorite congressional word] this weighty evidence, advisors to former president Trump are signaling that if he returns to the Oval Office he will be a dictator at least for the first day or so. Trump’s former director of the Office of Management and Budget, Russ Vought, supports a “post-Constitutional” approach.
As Vought and other Trump allies work on blueprints for a second term, he is pushing a strategy he calls “radical constitutionalism.” The left has discarded the Constitution, Vought argues, so conservatives need to rise up, wrest power from the federal bureaucracy and centralize authority in the Oval Office.
“Our need is not just to win congressional majorities that blame the other side or fill seats on court benches to meddle at the margins,” he wrote in the 2022 essay. “It is to cast ourselves as dissidents of the current regime and to put on our shoulders the full weight of envisioning, articulating, and defending what a Radical Constitutionalism requires in the late hour that our country finds itself in, and then to do it.”
In practice, that could mean reinterpreting parts of the Constitution to achieve policy goals — such as by defining illegal immigration as an “invasion,” which would allow states to use wartime powers to stop it.
“We showed that millions of illegal aliens coming across, and Mexican cartels holding operational control of the border, constitute an invasion,” Vought wrote. “This is where we need to be radical in discarding or rethinking the legal paradigms that have confined our ability to return to the original Constitution.”
Vought also embraces Christian nationalism, a hard-right movement that seeks to infuse Christianity into all aspects of society, including government. He penned a 2021 Newsweek essay that disputed allegations of bias and asked, “Is There Anything Actually Wrong With ‘Christian Nationalism?’” He argued for “an institutional separation between church and state, but not the separation of Christianity from its influence on government and society.”
Looking at immigration through that lens, Vought has called for “mass deportation” of illegal immigrants and a “Christian immigration ethic” that would strictly limit the types of people allowed entry into the United States. At a 2023 conference organized by Christian and right-wing groups, he questioned whether legal immigration is “healthy” because, in a politically polarized climate, “immigration only increases and exasperates the divisions that we face in the country.” …
Vought favors boosting White House control over other federal agencies that operate somewhat independently, such as the Federal Trade Commission, which enforces consumer protection laws, and the Federal Communications Commission, which regulates television and internet companies. Trump’s never-implemented order from his first term making it easier to fire government employees would allow the White House to excise policymakers who resist the will of the elected chief executive.
Wow! The Trump people seem to believe that a “deep state” of career employees thwarted the White House during his administration and must be purged in the future. In fact, the most determined and successful opposition to many of Trump’s policies came from his political appointees.
While Trump’s last-minute Schedule F was repealed by President Biden and replaced with protections for careerists, a new administration could bring it back.
A more immediate challenge in a renewed Trump presidency is likely to be over “impoundment” — presidential refusal to spend money appropriated by Congress.
Longtime Trump allies have in recent months discussed potential targets to test executive impoundment authority, including green energy subsidies approved by President Biden as part of the 2022 Inflation Reduction Act and funding for the World Health Organization, according to two people who spoke on the condition of anonymity to reflect private conversations. Trump officials regard both programs as wasteful.
Trump last week also without explanation told Fox News that he would “end” the Education Department and cut unspecified environmental agencies. These actions would happen “immediately,” he said — although a spokesman said he would not use his impoundment authority to do so.
“This is definitely something a lot of people are currently talking about within Trump circles,” said Avik Roy, founder of the Foundation for Research on Equal Opportunity, a think tank that pushes free markets, and a former adviser to leading GOP policymakers.
A third Trump ally, who also spoke on the condition of anonymity to relay private discussions, said former administration officials have also discussed using new impoundment authority to scrap international aid programs approved by Congress.
Richard Nixon tried this in 1973 and Congress responded with a law creating the congressional budget office and process and allowing impoundments only if Congress passes a “rescission” law cancelling the spending authority. Trump allies seem to think they can get away with cuts without formal rescission, and conservative courts might let them.
I hope, however, that even a Republican-led Congress would stand up for its Constitutional power of the purse. GOP lawmakers shouldn’t want to be neutered by any president, and they should realize that an empowered future Democratic president could make things even worse.
It’s ironic that Vought thinks a super-strong president would be good for America. In his blueprint for the Executive Office of the President for the Heritage Foundation’s Project 2025, he even quotes James Madison on the danger of concentrated power.
In Federalist No. 47, James Madison warned that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Regrettably, that wise and cautionary note describes to a significant degree the modern executive branch, which—by the bureaucracy or by the President—writes federal policy, enforces that policy, and often adjudicates whether that policy was properly drafted and enforced. The overall situation is constitutionally dire, unsustainably expensive, and in urgent need of repair. Nothing less than the survival of self-governance in America is at stake. The great challenge confronting a conservative President is the existential need for aggressive use of the vast powers of the executive branch to return power— including power currently held by the executive branch—to the American people. Success in meeting that challenge will require a rare combination of boldness and self-denial: boldness to bend or break the bureaucracy to the presidential will and self-denial to use the bureaucratic machine to send power away from Washington and back to America’s families, faith communities, local governments, and states.
Presidents never “return power” to the people. At best, they use power to help and protect the people, but those levers remain in Washington. They may claim that they know what the people want, but our system doesn’t allow direct voting on that issue, only on fitness for office at a regularly scheduled election.
Vought wants a dictator who ignores Madison’s warnings and the Constitutional limits the Framers established.
Of course there is waste in government. Of course we need to limit government spending in great excess of revenues. But the process established to decide what is necessary and what isn’t requires action by both the executive and legislative branches, not just a super strong president.