A Constitutional Revival – Part 1
Rebuilding our government after the teardown
We, here in Washington, know a thing or two about teardowns. Long before the President, Elon Musk, and their DoGE team of chainsaw-wielding twenty-year-olds began dismantling our federal government, we had already, several times, experienced the pain and anguish of watching our all-stars given the ax and sent packing. It wasn’t the committed public servants in the Departments of Education or Veterans Affairs or the Agency for International Development (USAID) who were shown the door then, but rather the stars of our sports teams. And as is happening now, it was inflicted then by heartless and greedy billionaire overlords.
We learned many things from these experiences, but the one I’m thinking about now is that after the teardown comes the rebuild. The rebuild itself can be difficult and often painful too. But it can lead, eventually, to great success and joy. While we’ve written on this Substack about the torment, cruelty, and irrationality of the Trump/Musk destruction of swaths of our government – and I suspect there will, unfortunately, be much more of that to come – there ought to be a small place, too, to start contemplating the rebuild of our government; what comes next when our flirtation with despotism – and let’s hope that’s where it remains – is over. We want to be ready. We want to rebuild better, stronger, faster. And the rebuild may begin sooner than we think.
When we finally get to that rebuild, there will be a reflex to simply restore what’s been taken down. Especially for those, like me, who are elderly, an enticing impulse will pull at us to embrace the “good old days” and remake what’s been taken away. Gillian Tett, a cultural anthropologist and Financial Times columnist, reminds us that “every single person assumes that the intellectual framework they grew up with and built their careers around is natural, normal, inevitable, and should be universal. That’s just the nature of being human.” She also shares that this assumption is usually wrong; that ideas and what works change over time. It turns out there are a lot of reasons for fresh thinking here.
Pride in the Past; Eyes Wide Open for What’s Next
Watching the destruction of our federal government these past weeks, there is indeed much righteous pride in its past accomplishments and despair in what’s being lost. The government being taken down took shape in the Progressive Era and then expanded in the post-World War II decades through a structure framed by the Constitution, but with independent agencies that sprung up over that time and the administrative state, so derided by its opponents, neither of which are constitutionally explicit.
That structure helped make America great, a not-often-discussed element of a time President Trump is so often pining for. It brought us more economic growth, environmental protection, public health, food and transportation safety, a sensible interstate highway system, mostly stable financial markets, power grids for rural and urban alike, and so much more. The federal government of the last hundred years has not nearly been perfect, and the recent critiques of government sclerosis from the right and the left – and especially those pushing a new era of abundance – ring, at least partly, true. But it’s worth recognizing that the governmental design that emerged from the Industrial Age and that included independent executive branch agencies, agency rulemaking and adjudicatory functions, and a federal government filled with committed and expert public servants, coincided with – and was a fundamental springboard for – long term growth and increased health and safety.
That governmental design was an innovation of its time, based on Congress recognizing both the need to regulate, first the railroads through the Interstate Commerce Commission and later many other aspects of the then-industrializing economy, and its own limited capacity to write analytically based and efficient rules that would embody that regulation. The great justice of the mid-20th Century, Felix Frankfurter, described the development of administrative agencies and administrative law – the effort to bring some management, direction, and control to banking, insurance, public utilities, finance, industry, health – as “the manifold response of the government to the force and needs of modern society.” It was, as he said, “systematic scrutiny” of the societal issues and problems of an industrializing country and “a conscious effort towards their wise solution.”
It is important to start here, because just as it will be tempting to pine for the “good old days,” it will also be tempting – as we see with DoGE – to “throw out the baby with the bathwater;” to rid the government of many of its critical analytical parts along with everything else, all in the name of reform. It is beyond dispute – unless, maybe, you’re pure libertarian – that in our 21st Century World, even more so than in Justice Frankfurter’s time, our government needs the systematic scrutiny of the issues and problems of our day. Some of us may hate the administrative state. Others may just want the government to work better. Regardless, our national government will need non-partisan expertise in health, finance, criminal justice, artificial intelligence, climate science, agriculture, and more – as a permanent, career-based part of the federal government – in order to evaluate whether national regulation is needed for emerging problems and then to craft rational and effective policy and legislative options that compliment, at times, and limit at others, market forces in ways necessary for the public good.
It’s not that the experts will always get things right. That is not the nature of scientific and enlightenment inquiry. But acknowledging the shortcomings of science, research, and the current administrative state should not mean discarding rigorous inquiry or a government staffed, in part, with experts studying the issues of our day. The alternative is Robert F. Kennedy Jr. and cod liver oil to stop a measles outbreak. Non-partisan scientific and research-based inquiry cannot be dispensed with if our country is to flourish in the years ahead and to embrace and adjust to new technology and innovation, and if our government is to be more than faith-based. As Senator Elihu Root said in an address to the American Bar Association back in 1916 about the then-emerging worlds of administrative agencies and administrative law, “[t]here will be no withdrawal from these experiments. We shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to rights and obstacles to wrong-doing which under our new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation.”
Ensuring a government informed by (but not controlled by) science, research, and analysis, one able to build, effectively regulate, and otherwise meet new challenges – legal, political, technological, environmental – is part of creating a thriving national economy and preventing waste, inefficiency, and corruption. But doing so will necessarily mean innovation in governmental structure and design. For even if we wanted to, keeping or reviving the old governmental design is not at all likely, for that design is under attack, from right and left, and for the time being, anyway, from all three branches of our government.
Start with the Supreme Court. The Court we have today – and the one we are likely to have for some time – does not look kindly on the administrative state. The Court is skeptical of the authority it wields. It has manifested that skepticism with the end of Chevron deference, with the rise of the Major Question Doctrine, and with other delegation and separation of powers decisions and doctrine. While the precise contours of the regulatory and administrative actions the Court will permit and those it will wall off are still quite murky, there is little doubt that we are in the early or middle innings of Court action to curtail the administrative state as it is constructed today. Chief Justice Roberts’ recently shared views pretty much sum up the Court’s perspective: “[t]he administrative state wields vast power and touches almost every aspect of daily life . . . The framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social, and political activities . . . The administrative state with its reams of regulations would leave them rubbing their eyes.”
Second, whether you support the Court’s legal understanding of the permissible contours of the administrative state, it is beyond dispute that our federal government is structurally not working well, and neither the right nor the left – at least parts of the left – are enamored of it. Passing legislation has been increasingly a farfetched enterprise and Congress often doesn’t even try. The inability of Congress to enact an annual budget before the start of the fiscal year is not just a national embarrassment – one we accept now quite passively – it’s an indication that something is systemically wrong. Where periodic departmental authorization bills were once common, they are now, except for the Department of Defense, rare. Regulatory frameworks put in place for different times – times gone by – are left without update despite dramatically changed circumstances and technology. Oversight is now just another political instrument rather than part of the separation of powers’ toolkit used to strengthen our government.
It’s no secret and no partisan cry that Congress is dysfunctional. And as that dysfunction has increased over time, presidents of both parties have increasingly looked to regulatory agencies and various executive actions, orders, and guidance documents to enact a policy agenda. As we watch the first months of the Trump Administration unfold, it seems pretty obvious – and not a particularly controversial or partisan observation – that the executive power grab and legislative acquiescence are not the separation of powers the Framers envisioned. This is not an ideological statement; it is a constitutional one. The President and his cabinet – including his Attorney General – see Article II not as establishing a branch of government to implement and execute on policy made by the legislature, but rather a branch that is the primary policymaker. President Trump and his Attorney General say out loud and with a straight face that by virtue of being vested by the Constitution with all executive power, the overall policy of the United States is set by the nation’s chief executive. How much of this is due to Congress not exercising its legislative muscle? How much of this is due to the accretion of power in the Executive Branch by virtue of the administrative state? How much of this is due to gerrymandering or Twitter or simply to President Trump’s dictatorial tendencies?
I’m not sure it matters. Because while there are constitutional fights to be fought – and being fought as I write this – there is also something new needed for the future. It’s not just that the Supreme Court is skeptical of administrative agencies, it also looks favorably on the Unitary Executive theory. That combination is not just a recipe for the kind of executive power grab we’re experiencing now, it is also an indication that if we still believe in separation of powers as a foundational strength of our Republic, that the currently weakened Legislative Branch must be strengthened and the focus of administrative rule making and adjudication in the Executive Branch must be reexamined.
These trends did not begin with President Trump. Our federal government was not working as intended long before 2025. Yes, President Trump is a dangerous outlier, and we have a great responsibility to call out his unlawfulness and misguided policies, to fight for a less cruel and more just world. And acknowledging governmental structural sickness pre-2025 is not to deem morally equivalent all who were part of it.
President Trump is uniquely causing great damage to our country, in both domestic and foreign policy. He is on his way to destroying NATO. He is eliminating the Consumer Financial Protection Bureau and much of the Environmental Protection Agency. He is firing tens of thousands of government workers for no particular reason. He is making a mockery of our cherished Department of Justice. He is changing the meaning of civil rights laws. He is cozying up to dictators and isolating our country from those around the world who value and crave freedom. And on and on. Dozens of judges are trying to block President Trump’s actions as unlawful and sometimes unconstitutional. The attempt to end birthrights citizenship was deemed by a federal judge to be “blatantly unconstitutional.” The shuttering of USAID was found by a different judge to have violated the Constitution. Suspending the U.S. Refugee Admissions Program, banning transgender individuals from the military, invoking the Alien Enemies Act to deport Latin American immigrants have all been found to be illegal.
But all this notwithstanding, something was very wrong with our national government before President Trump’s second term. And it’s no great revelation or insight that presidents of both parties have been increasingly stretching executive power for some time to try “get things done.” President’s Obama and Biden were very explicit about doing it. What’s aberrational about this moment is only that the President and his officers, including the Attorney General, are putting no limits on their power grab and saying out loud where they are going. President Trump’s desire for hegemonic power only makes that much more plain the weaknesses of our current federal governmental structure.
Restoring Separation of Powers and a Constitutional Revival
We were taught, over and again, that the central judgment of the Framers of the Constitution was that of paramount important to the preservation of liberty is the separation of governmental powers into three coordinate Branches. James Madison, in writing about the principle of separated powers, said in Federalist 47: “No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.” What we are experiencing now in real time proves the truth of this principle, and also that we have moved far away from it. Yes, something is very wrong, and President Trump has made that fact self-evident. But what’s wrong is not the principle of separation of powers. What’s wrong is that the evolution of our federal government, slowly over time, has blurred the separation to an extent that the actions and inactions of the political branches are endangering the country.
While the Supreme Court has repeated Madison’s admonition that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others,” it has mostly let the Executive Branch become the power center that we see being taken to extremes now. While the post-Watergate reforms were focused on checking certain executive powers, especially law enforcement powers, post-Trump reforms will need to go further and will need to include innovation in government design and structure, innovation that will encourage — nudge us towards — a separation of powers more in line with the constitutional vision of the Framers. It will require a constitutional revival.
Those of us who have been working on federal sentencing law and policy, oddly enough, have some experience in innovative governmental design and may be able to help with the revival. As the Supreme Court said in Mistretta v. United States, in describing the placement of the Sentencing Commission, a rulemaking body, in the Judicial Branch, the Commission is “unquestionably . . . a peculiar institution within the framework of our Government.” In the Sentencing Reform Act, Congress placed this law-making, regulatory agency in the Judiciary in part because it wanted the experience and expertise of judges to contribute to the work. It was certainly unusual, though.
Charles Fried, the Reagan Administration Solicitor General in 1988, and his team argued before the Court that writing sentencing guidelines was actually a proper exercise of “executive power,” rather than judicial power. The SG, in his effort at a bit of a power grab, leaned on decades of administrative law and practice. “Congress has often authorized executive officers to implement legislation by promulgating substantive rules or regulations that have the ‘force and effect of law,’” citing Chrysler Corp. v. Brown, Chevron, Chadha, and Buckley v. Valeo.
But the Court ultimately didn’t buy it and left the Commission and its rulemaking function in the Judicial Branch. Forty years of Commission experience suggests that at least that one aspect of Mistretta may have been wrong, or at least misguided. The Court’s easy acceptance in 1989 of the intrusion of the Judicial Branch on the law-making function of Congress mirrors the acceptance of the much longer practice of law-making and adjudicatory functions in the Executive Branch. That easy acceptance increasingly looks like a mistake, and the recent Court decisions pulling back on it looks wiser.
I am not at all suggesting that the writing of guidelines should have been left to the Executive Branch, as the Reagan Justice Department suggested in its brief to the Supreme Court. Rather, in this time of contemplating a better separation of powers governmental structure, perhaps the law-making function should have been left to its more natural home in the Legislative Branch; and that perhaps the better innovation might have been to create a regulatory agency, a Sentencing Commission, within the Legislative Branch, to draft the guidelines to be accepted or rejected by Congress.
Such a structure would certainly have been more consistent with Madisonian separation of powers theory. And it leads to the thought-experiment, as we contemplate rebuilding the federal government in the post-Trump era, that perhaps the regulatory, law-writing administrative function that has been mostly part of the Executive Branch might be better placed in the Legislative Branch. And similarly, perhaps the adjudicatory functions from the regulatory agencies – think Administrative Law Judges and SEC v. Jarkesy, decided last term – might be better placed in the Judicial Branch. There were reasons that may have seemed benign and efficient in the mid-20th Century to gather all these functions in Executive Branch agencies. But that governmental design doesn’t seem so benign now.
How might the legislative and judicial branches be expanded following this line of thinking? What would administrative agencies in these branches look like? What would be the rules of their creation, staffing, and policy development? These are all questions for Part 2 and 3 of A Constitutional Revival. For now, I just hope that we might remember President George Washington’s words in his farewell address, especially how the need to preserve “reciprocal checks in the exercise of political power” is “as necessary as to institute them.”
It is important, likewise, that the habits of thinking, in a free country, should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding, in the exercise of the powers of one department, to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments into one, and thus to create, whatever the form of government, a real despotism.
I hope that in some small crevice of space between the ongoing battles for our constitutional democracy, we might begin a conversation on how to live up to the separation of powers that our Framers wisely – I still think – put at the heart of our country, whether and how to strengthen the Legislative Branch to make that happen, and whether we might make a constitutional revival a reality. For those opposed to what’s happening in our government now, it is worth considering how such a revival could be one focus for renewal and a path forward.
