Whatever Trump and his advisers say, I know he will not be able to easily and quickly remake Washington.
President-elect Donald Trump is returning to the free world's most powerful post, with a presumed mandate to take over the three million employees of the “deep state,” an insecure border, the yearbook says State contracting and industrial complex worth $800 billion, Big pharmaceutical industry and “awakeness.” But his administration will face the same limitations that my colleagues and I faced when we responded to the global financial crisis in 2008: every action we took had to be justified by an answer to the 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 penchant for aggressive executive action in the US will ultimately fail if it is not based on defensible legal authority and procedures. Just because Trump and his advisers say they can do something doesn't mean they can, at least not easily or quickly.
In 2008, I worked with Treasury Secretary Henry Paulson. He lacked the authority to prevent the catastrophic collapse of Lehman Brothers, even after Congress authorized unprecedented executive power with the $700 billion Troubled Asset Relief Program Newsweek called him King Henry, Both experts and citizens complained that we were not getting enough money for the aid that the George W. Bush administration gave to banks whose poor risk management was a major cause of the crisis. Our Answer but had to read: “Under what authority?”
An item on Trump’s agenda, the much-touted Department of Government Efficiency – DOGE – is a case in point. His co-chairs Elon Musk and Vivek Ramaswamy wrote one op ed in the Wall Street Journal, claiming that they would “do things differently.” We are entrepreneurs, not politicians. We will serve as outside volunteers, not as 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.
Here is Russell VoughtTrump's nominee to oversee the powerful Office of Management and Budget is running. He has spent the last four years refining plans – and legal justifications – for the sweeping use of executive power that Trump wants and that Vought calls “radical constitutionalism.”
Vought's plan includes the bold maneuvers that DOGE plans to employ, according to the Wall Street Journal editorial. One of them is the budget sequestration that Trump has already made married. The idea is that the president can decide which to spend regardless of the funds appropriated by Congress, creating an effective line-item veto. Such a veto was expressly forbidden under the Congressional Budget and Impoundment Control Act of 1974. Vought has boldly asserted that this law is unconstitutional.
But even with three Trump-appointed Supreme Court justices giving conservatives a 6-3 majority, no one can be sure the judiciary will serve as an unfettered rubber stamp for bolder action. In fact, his administration achieved only one during Trump's first term 23% legal win rate when it questioned federal agency policies and actions. (The historical average is about 70%.)
We should expect Trump 2.0 to improve his bureaucratic effectiveness, not least because the Supreme Court last term debunked the so-called Chevron Doctrine, which stipulated that agency decisions would be taken into account as long as their legal interpretation was reasonable.
However, if Musk and Ramaswamy believe that the Chevron decision means they can successfully repeal thousands of rules with a single stroke of Trump's pen, amounting to a nuclear bomb from the administrative state, they will find that deregulation is much more like turf warfare looks. To avoid giving their opponents judicial ammunition to claim a procedural violation, repealing the rules they don't like must follow the lengthy procedures of the Administrative Procedure Act.
Certainly, Republican politicians and voters have shown their loyalty to Trump and a clear willingness to disrupt Washington. However, there is still the Senate minority and the filibuster, a free press, a sizable portion of the business community that will not benefit from changes to the status quo, the American political preference to “throw out the bums” in the next election – and most of all, the Rule of law as the limits of an imperial presidency.
Trump will undoubtedly be able to upset the norms of government, but he will not be able to completely remake democratic institutions in his image without a sufficient answer to the question “Under what authority?”
Stephen A. Myrow was a senior official at the U.S. Treasury Department in 2008. He is currently managing partner of Beacon Policy Advisors, an independent policy research firm based in Washington.