The Drafters of a Key 1940s Law Feared an American Dictator. Trump Is Blowing That Law Up.
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The first 100 days of Donald Trump's second term have come and gone, and one thing is clear: The administration is engaged in a three-dimensional assault on the principles of American government that have served as the foundation of executive policymaking for the past 80 years.
It is clarifying to consider America's current crisis in a tripartite fashion: First, looking at Trump's attack on the system of executive branch policymaking established by the Administrative Procedure Act. Then considering its related, but analytically different, campaign to destroy the autonomy of “independent” agencies like USAID. Finally, emphasizing the way in which his creation of a Department of Government Efficiency goes even further to repudiate the system of checks and balances established by the Framers in 1787.
Begin with the APA, which was passed in 1946 to provide the basic framework for the legitimate exercise of administrative power in the post-war world. At that moment, the nation was mourning the deaths of 450,000 Americans on the battlefield—with many more soldiers returning home grievously injured. Within this setting, the bloody victory over Adolf Hitler carried a mixed message. On the one hand, it heralded an era of American leadership of the free world. On the other, it dramatized the grave danger involved in authorizing presidents to deploy sweeping powers that could transform them into American versions of Hitler.
With President Franklin Roosevelt dying shortly after the war ended, it was left to Harry Truman to take decisive steps to reduce the risk of charismatic dictatorship. President Truman proved equal to the challenge. He endorsed the APA even though it dramatically reduced his presidential power. No less remarkably, so did Gov. Thomas E. Dewey, his leading Republican rival for the presidency in the 1948 election. Given the bipartisan support, both House and Senate enacted the APA by overwhelming majorities. The act specifies administrative procedures for both individual adjudications and rules with the force of law. Now being targeted by Trump are the statute's rulemaking provisions, which require executive agencies to engage in a “note and comment” procedure before they issue new rules or replace legally binding rules put in place by a previous administration. To initiate this process, agencies must first post a draft proposal in the Federal Register and invite all interested members of the public to submit written comments on the proposal's merits. Once the “open-ended comment period” has passed, it is not enough for decisionmakers to consider these comments in their policymaking discussion. Instead, the APA requires the agency to provide a public explanation of the rule's “basis and purpose” that takes account of these critiques in framing its final regulations.
Yet even this effort at public justification may not suffice to sweep away a prior regulatory regime. Instead, the APA authorizes disappointed critics to challenge the proposed rule in federal court—and to argue that the agency action violates the substance of the underlying statute and/or failed to conform with required APA procedures. It is only if the judiciary rejects these complaints that the new rules go into effect.
To be sure, the APA exempts rules dealing with military or foreign affairs from the act's rulemaking procedures as well as many spending programs. During President Trump's first 100 days, his government has advanced problematic interpretations of these exemptions to repudiate a wide range of established practices—most notably by radically transforming immigration and border policy.
These initiatives have predictably provoked challenges to their legality in the courts as well as widespread public protest—generating political and judicial dynamics that will take at least a year or two to resolve. In the meantime, however, they should not divert attention from blatant violations of the APA on the domestic front. First, a presidential memorandum tells agencies that they can repeal existing regulations without following APA requirements. Second, President Trump has directed agencies to eliminate 10 existing regulations for every new regulation they promulgate—a transparently irrational way to set priorities, even for advocates of a radical reduction in the scope of government intervention. Third, the Office of Information and Regulatory Affairs in the Executive Office of the President is asserting the authority to review the rules of 40 “independent agencies” to see if they satisfy cost-benefit criteria, even though Congress explicitly insulated these agencies from direct control by the White House to prevent the abuse of power. The statutory techniques deployed to promote agency independence are different in different cases: compare the Federal Reserve Board and the Federal Communications Commission with the Central Intelligence Agency. But these important differences should not obscure Congress' larger ambition—which is to protect all independent agencies from presidents seeking to use them as weapons against their political opponents.
Since Trump's arrival in the White House, the blizzard of unilateral executive actions may seem like a mass of technicalities irrelevant to most citizens. Yet, to dismiss these actions as trivial obscures his sweeping assault on the public accountability of regulatory procedures established by Congress in the APA and statutes that insulate independent agencies from presidential power-plays. To his great credit, professor Phillip Cooper has set up a website that collects all these problematic initiatives, which is getting longer as the days pass. This site permits readers to appreciate the different ways that Trump is assaulting the APA and undermining agency independence—providing a basis for realistic responses to different presidential acts of self-aggrandizement.
We turn, finally, to a third dimension of the president's assault on the system of checks and balances. Since the founding, it has been up to Congress, not the president, to decide whether a new department should be created in the executive branch and to define its mandate by an appropriate statute. Yet, on his very first day in office, Trump purported to create the “Department of Government Efficiency” by executive order. He then appointed Elon Musk as the head of DOGE without seeking “the Advice and Consent of the Senate,” even though this is explicitly required by Article 2 of the Constitution for all “officers of the United States, whose appointments are not herein otherwise provided for.” Nevertheless, Musk and his subordinates have been firing experienced civilian servants in a host of executive departments established by congressional statutes over the course of generations.
Worse yet, Trump is following DOGE recommendations to cut the agency budgets for the current fiscal year even though these funds have already been appropriated by Congress and were approved by President Trump himself when he signed a continuing resolution funding the government through September 2025. These cutbacks are a straightforward violation of Article 1's express grant of exclusive budgetary authority to Congress. Moreover, in 1974, Congress and the president passed a statute that addressed the very issue raised by DOGE's unilateral cutbacks. The Congressional Budget and Impoundment Act gives presidents 30 days to persuade Congress that recent events make it unwise to spend money that has already been appropriated. During this time period, the White House is expressly authorized to delay these expenditures—but if both houses of Congress refuse to approve the president's recommendation within this brief period, the president is explicitly required to spend the money. Yet the administration has now moved beyond its first 100 days in office—and continues to defy the command of the statute to obey the Constitution.
Taken together, Trump's budget-slashing DOGE combined with his totalizing assault on independent agencies only serves to reinforce the clear and present danger posed by his repudiation of the Administrative Procedure Act. These dictatorial dynamics threaten to destroy the democratic foundations of the American republic. This is not a time for serious defenders of Enlightenment democracy to stand on the sidelines. We must set aside our differences and organize a campaign that will inspire voters to confront this threat in the coming congressional elections.
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