Transcript
This transcript was generated automatically and may contain errors and omissions.
David: [00:00:00] Welcome to Outrage Overload, a science podcast about outrage and lowering the temperature.
Imagine this, a President defies a court order, refusing to halt an action that a federal judge has ruled Illegal. Agencies created by Congress are systematically dismantled or ignored. Laws meant to prevent corruption are suspended by executive order, and all the while oversight mechanisms, Congress, the courts, the press struggle to hold power accountable.
Oh wait, we don’t have to imagine. It’s happening right now. For decades, power has been shifting toward the executive branch. But we may now be entering a new phase, one where the president is no longer bound by the traditional checks and balances of the American system of government. That’s what we’re going to talk about on this episode of the Outrage Overload Podcast.
I’m your host, David Beckemeyer, and today we’re joined by [00:01:00] two experts to help us make sense of what’s happening. Professor Kevin Smith is a political scientist who has written extensively on the role of federal agencies in governance. James Goodwin is a legal expert who studies constitutional law. He also holds a BA in Political science and a master’s degree in public policy.
Together they’ll help us understand the stakes, what’s happening, how we got here, and what it means for the future of this experiment We call America. Stay with us. To understand how power is shifting, we need to start with the basics. What is the federal bureaucracy and why does it exist? Critics often describe government agencies as wasteful, unaccountable, and bloated, but is that the full story?
Professor Kevin Smith explains
Kevin Smith: the size of the federal workforce relative to the growth in population has been pretty flat for a very, for a very long time. I mean, the federal government, you know, might do more contracting out. In other words, you know, rather than having a federal agency [00:02:00] in-house employees doing that, uh, those agencies might be hiring an NGO or even a private sector company to do some of the work.
But the advantage of doing that is once the contract is up, you don’t have to renew it, you don’t have to pay pensions or those sorts of expenses. One of the things that I think kind of gets, uh, forgotten in this whole current contemporary debate is that. In the late 1990s during the Clinton administration, there was a very concentrated effort to reform the executive branch.
It was the, it was headed by Al Gore and it was called the Rego Movement, reinventing Government, and they actually managed to cut the federal workforce. I couldn’t quote you the exact numbers off the top of my head, but it, it was a lot, hundreds of thousands and you know, there was a real drive to make government more efficient.
And you know, there were some successes and there were some failures there, but this is not, this has been a [00:03:00] constant in American politics for a long, long time. This notion that the federal government is too big, it’s too bloated, it’s too inefficient, and we need somebody with, historically it’s been somebody with business savvy.
If only we could run government a a little bit more, like a business would save more money and we’d get more bang for our buck out of our. Out of our government and sort of like what Elon and the lads and the and the Doge thing are doing is just sort of like the latest iteration of something that’s been going on for a long, long time.
One of the things that I think a lot of people don’t realize is that federal executive branch agencies, in fact, any public bureaucracy is not designed to be efficient. The whole of the United States government is not designed to be efficient, and I’ll say that again. It is not designed to be efficient, and it was very, very deliberately [00:04:00] designed that way.
What the government is designed to be is responsive. It’s designed to be to treat people as equals before the law. This is why you have all that red tape and process and bureaucracy. A lot of it is to ensure a quality of treatment. And does that result in a lot of red tape, a lot of frustration and a lot of actions on behalf of government agency or that are undertaken by government agency where you’re sort of like scratching your head and and thinking what the hell’s, uh, that all about?
And and the truth is that is yes. Absolutely. And you know what? That’s not a bug. That’s, that’s, that’s a feature. I mean, I’ll give you a perfect example. I, I can’t speak to this ’cause I haven’t looked at it. And in, in a while, but around the time of the Great Recession, so 2008, 2009, there were at least five federal agencies regulating the banking system.[00:05:00]
Makes no sense. I mean, if you’re approaching this from efficiency, you know, MBA sort of perspective, it makes no sense. You know, why do. You know, banks get their own regulator and then savings and loans get a different sort of regulator. Well, I, I, I can tell you why, because that’s democracy in action. You know, the representatives of those, those two industries have lobbied their members of Congress who’ve responded by creating agencies to sort of like oversee their little part of their little part of the world.
And that doesn’t make any sense from an efficiency. Sort of standpoint, it makes perfect sense from a democracy sort of standpoint. I mean, and it’s surprising coming from an administration, which is a Republican administration. Which I guess that it, it’s more of a populist administration than a conservative administration, but there’s plenty of conservatives in [00:06:00] the, in the, in the Trump orbit is, there’s no examination of what, what is, you know, colloquially called Chesterson’s Fence, which is you don’t destroy something Without figuring out first what its function is, what it’s for, and if you understand why it is there and why it is doing what it’s doing, and you’ve thought about the second and third order consequences of tearing that fence down and you are happy that that’s going to produce a better world, then go ahead, tear it down.
But just tearing down the fence and then figuring out later, oh, that was a bad idea. When it comes to governance, that’s a really bad idea because sometimes it takes, you know, generations to build up an effective set of processes and, and norms. And I, you know, I hear people who get very frustrated with government agencies because they can be frustrating.
They can be [00:07:00] irritating, but you know, is life gonna look a lot better once they’re gone? Everybody is talking about, we need to get rid of more bureaucrats, we need to get rid of more bureaucrats until there’s a huge plane accident or something like that. And, and then it’s like, well, why isn’t the government doing something about that?
You know, U-S-A-I-D might be some people’s idea. And in a defensible way, I’m, I’m not trying to throw shade at people who make this argument. It’s like that is an agency that is just. You know, gone past its due date and we need to pull back and, and stop funneling a ton of money through there. Great. If that’s what you wanna argue.
But to other people, there’s a defensible argument that agency is incredibly important in the United States of America. You know, for a very, for a relatively cheap price. It allows us to exercise soft power in a world that protects the interests of American citizens. That is also a defensible argument.[00:08:00]
Now, before you go in there and blow the whole thing up. You know, maybe you want to examine the, you know, the foundations of those two arguments and figure out, you know, which one, you know, has the weight of evidence behind it. And I am not arguing, and you know, they’ve raised some pretty examples that I.
You know, I, I’m a, you know, a little taken aback by some of the examples that they’re, uh, you know, providing, you know, we’re supporting DEI programs and you know, wherever, those sorts of things. I mean, I think there’s legitimate questions about is that the best use of, you know, American taxpayers dollars?
And that’s a perfectly. Supportable constructive conversation to have, but to go in and find some of these examples and say, yep, this justifies blowing the whole thing up. At least in my, my [00:09:00] own opinion, I, I think that’s probably going a, not a step too far. Not a bridge too far, but mm-hmm. Maybe several bridges too far.
David: These agencies don’t just exist for the sake of bureaucracy, as James Goodwin explains, they play a crucial role in delivering services, enforcing laws, and maintaining democratic stability.
James Goodwin: I’ve been making this argument for nearly 20 years that, uh, the administrative state is the most important part of our democracy, and in some ways it’s the most Democratic Small-d Democratic. If you really think about it, and I mean you look back at its origin story, right? It sort of is birthed in the progressive era because our, our coordinate branches in the Constitution just weren’t, were not responding to public demands. For economic and social policy, you know that were flowing from things like industrialization and urbanization, and part of that is because of coordinate branches.
Were not designed to respond to public demands. They were designed to respond [00:10:00] to elite demands and elites were doing just fine. So we create this administrative state on the scaffolding of our constitutional framework and it does all that stuff. It responds to public demands, uh, for social and economic policy.
Now, that’s not to say it’s been perfect, right? It’s not been perfect, right? It’s been captured in various ways, uh, like any human institution will. And, but by and large, it has served us very well. And not only that, it’s incredibly inclusive of the public. When an agency writes a rule, they have to propose it.
They have to take public comment on it. And if they don’t, the rule risk getting struck down in court. There is nothing like that in Congress. Right. You know, they get their constituent letters. I send a constituent letter to my senator a few weeks ago because I’m not real thrilled with how he’s doing.
And I get this form letter back that was not, and you know, I didn’t talk to anybody there. I left a message because that’s [00:11:00] all that I could do. And then I get this form letter back that’s not even relevant to the point that I raised, like. You know? Yeah. That they’re not, that’s not a democracy. They’re a republic.
But man, that is really, really not even close. And so this is what the administrative state has been doing very, very quietly for the last a hundred years. What we’re now seeing is just how important the administrative state is. Uh, not just for, like I said, delivering checks and, and Preventing pollution, but as that kind of stabilizing force in our democracy, right?
These are guys and girls, people, uh, who are there from one presidential administration to the next, uh, or at least that used to be the case. And they held the expertise. They, uh, understood how the programs worked, and they were more or less in tune with the public they were serving. Because believe it or not, they are the public they serve.[00:12:00]
You know, the FDA scientists are not Elon Musk. They are people you are sitting next to in your church or standing next to in your grocery store. Uh, they bring that kind of real world expertise to their job in addition to being a scientist or engineer or whatever it happens to be. And so that’s what I mean by them being extraordinarily democratic and stabilizing within our democracy.
And we are on the cusp of losing all of that.
David: But despite their importance, these agencies are under attack, and that’s where the executive power comes in. The US government was designed with three co-equal branches, but over time, the executive branch has gained more and more control sometimes with the cooperation of Congress, sometimes in direct defiance of it.
Professor Kevin Smith explains what’s at stake.
Kevin Smith: I think there’s, there’s a number of risks. I mean, some of ’em we have touched on before. The, the, you know, one of the big ones is, you know, [00:13:00] our system is supposed to be centered around the legislature. I mean, that’s the way that the Constitution was written and the way some of this movement is moving towards, it’s much more towards, you know, what you might call an imperial presidency where it revolves around the president.
But in our system, in our constitutional system, it is Congress that is supposed to make the law, and it is the President that is supposed to enforce the law. It is Congress that creates the agencies, it’s Congress, which appropriates money and resources to those agencies. And there seems to be this growing expectation that, well, you know, the people who set up that system have just got it wrong.
What we need is power concentrated in the executive branch. And in order to effectively wield that power, they need to have much more embedded control over the control of, uh, not just [00:14:00] personnel, but the direction of agencies themselves. And I, you know, I’m. That certainly is going a different route from what the, the, the sort of system that the founders argued would be the best sort of system for a republic.
I mean, where I would put my faith and trust on these sorts of things is with James Madison and not necessarily Elon Musk or Peter Thiel.
David: James Goodwin warns that this pattern isn’t unique to the us. We’ve seen similar shifts in other countries, places where democracy has eroded before the public fully realized what was happening.
James Goodwin: The way this is playing out isn’t with tanks in the streets, right? Like you would expect from like, you know, a movie type coup or whatever. It’s being played out in the courtrooms, guys in suits, briefcases, and uh, you know, it’s really hard to, to, to appreciate. The practical [00:15:00] significance of all that stuff.
Right. Uh, like I said, it’s very slow moving and how it ultimately plays out in the real world is hard to predict. I mean, instead of looking to our own history, it might be helpful to look at, I. Similar situations in other countries that have gone down what appears to be this past, so like Orbán and Hungary and you know, there the parallels which is so incredibly striking, re reducing, restricting freedom in universities, if I can put it that way.
Cracking down on labor unions, vilifying, discreet and insular minorities, in our case, the trans community, and taking control of Independent media. Right. Have we gotten there yet? I don’t know, but you know, just two days ago the Trump administration issued an executive order. You know, that’s very bureaucratic thing, but you know, the kind of thing that makes the, the hairs on the back of my neck stick up.
Right. Uh, on clamping down on what are known as [00:16:00] independent regulatory agencies, these are agencies that have historically been insulated against day-to-day presidential politics. Right. Because their missions were just deemed too important to, to, to. To be subjected to that, one of which is a Federal Communications Commission, right?
This is the agency that hands out licenses to broadcasters to do what broadcasters do. And if we have like the NBCs of the world, uh, now suddenly worried that they’re not gonna get their license, if they are too harsh on the Trump administration, then we start getting into the self-censorship. And again, it’s, you know, it’s not, it’s not, Tanks in the streets,
David: iand it doesn’t have like a clear red line. It happened Tuesday. Right. And this, this has changed. Right? It,
James Goodwin: yeah. And you know, that’s what makes this all so frightening because I mean, on the one hand, like when I talk about these things, I wonder, am I, do I sound like I’m being an [00:17:00] alarmist here?
And on the other hand, like. Two months from now, I could be looking back at this conversation saying, damn, I should have been more alarmist. That was really terrifying. So, I mean that’s, that’s the conundrum we find ourselves in.
David: So if Congress is supposed to be a check on this, why isn’t it stepping in?
Congress has the power to create fund and oversee federal agencies. It can check the president’s power, but in reality it often chooses not to. Kevin Smith explains why
Kevin Smith: I think to some extent there’s a misidentification of the fundamental problem. In other words, they’re looking for the problem in the bureaucracy, the quote unquote deep state or, or what have you.
If, if that is true, and let’s just, for the purposes of arguments say it’s true, the fundamental problem still doesn’t lie with the bureaucracy. It lies with congress. Congress has the power of the gods over agencies, literally life and death. It can create them, it can destroy them, and it decides how much money they get.[00:18:00]
And Congress, and I’m far from the only person to have been pointing this out over the years, is largely abdicated that responsibility. You know, oversight is messy. It’s a grind, it’s a chore. You know, not sexy. Yeah. It, it doesn’t get you a lot of stuff that you can put on the old Instagram and E even now you’re seeing it.
I mean, Congress is basically sitting back and saying, yeah, you know, Elon and his crew over there are really, really raising a ruckus, aren’t they? That is essentially Congress saying, yeah, we’re not doing our job, so I guess somebody else will do it. You know, to defend members of Congress. I don’t think the incentive structure is, is set up to where, oh my gosh, you know this, this is how I’m going to make my career.
Being a really good watchdog of executive branch agencies, or even being a really committed. In depth, knowledgeable [00:19:00] lawmaker. You know, I’m, I’m gonna make myself an expert in this area and I’m really going to sort of like, you know, devote my career to writing laws that are, are going to make a difference.
I, especially if you’re interested in reelection, you know, just in purely in a short term horizon, sort of, uh, way. I mean, I, I don’t think that makes a ton of sense to do that. I mean, what you’re rewarded for now I think is being seen on the right team By a certain voting base and you don’t signal I’m on the right team by, you know, getting yourself on an oversight committee and really devoting a significant chunk of your working life to those oversight activities.
I just, I just don’t think the incentives are structured that way these days. There have been attempts to sort of like automate accountability and auditing and oversight of, uh, the bureaucracy, like the inspector generals that just got, that just got [00:20:00] canned and, you know, the argument, um, there might be that, well these are all, you know, all they are are agents of the deep state anyway.
Well, Congress can write a law that they can change things. You know, they could rate the law to where those inspector generals are. Appointed by Congressional Oversight Committees and must report direct to them. I mean, that is completely within their, their power. They, they just don’t seem to be interested in doing things like that.
You know, a lot of. The federal bureaucracy is fairly transparent. I mean, by law, if you ask information, they have to hand it over. Now, some of ’em might drag their feet, and certainly there are areas where, you know, you can’t be asking for information that includes, you know, personal data or intrudes upon national security, but.
It’s not like the bureaucracy is this impenetrable black box. I mean, academics have been looking inside it [00:21:00] for forever. And you know, one of the things that during this conversation, David, that I wanted to to touch on is Elon has been saying, you know, the bureaucracy is political. And it’s sort of like, yeah, no kidding.
It’s always been political. Anyone who’s read Dwight Waldo, who was a political scientist, who wrote a very famous book called The Administrative State, um, which came out I believe in 1948, uh, realizes that the bureaucracy makes political decisions, but there’s no way they, they’re going to stop making political decisions because it’s part of the job de uh, description.
You cannot write a law or even a set of rules and regulations that are so detailed that it can cover every potential circumstance and contingency that an agency or an agency member might face. And when there’s uncertainty, there’s no [00:22:00] firm guidance. They have to make decisions. In doing so, they allocate resources.
They spend some of the taxpayers money. They make decisions. Yes, sorry, you know, citizen X, you, you don’t get Y. But that’s not because they’re sort of like trying to usurp the power of Congress. It’s because they’ve got a job to do. The most famous example of, you know, the. Reason why bureaucrats are political, they make policy, they make political decisions, is from what people who study public administration called street level bureaucrats.
And take the example of a traffic cop, you know. Speed laws, speed limits are set by legislatures. You know, the, there are laws, well, and actually the federal government too has, has set laws on, on speed limits. But who really decides how fast you can go on a [00:23:00] highway? I mean, it’s the traffic cop, right? And if the traffic cop tries to stop everybody, let’s say the speed limit is doing.
65 miles an hour. If the traffic cop is anyone who’s going 66 miles an hour or higher, I’m, I’m going to stop. There’s no way that traffic cop can catch all of those. I mean, it’s just impossible. So what do they do? They basically figure out some number that, you know, this is where it’s sort of like, you know, I’m not giving you five miles an hour here.
You come screaming through here at 90. Uh, that’s, that’s who I’m going to stop. But arguably, whatever the number is, it’s set by the traffic call. It’s not set by law. And there are parallels to that example and every bureaucracy and, and, and it’s, you know, political decisions are made every day by bureaucrats.
Not [00:24:00] because they’re power hungry, but because they have to make decisions. They just don’t have a whole lot of choice about it. Now, do they always make the right decisions? Absolutely not, but I, I don’t think anything that is being done is going to prevent, you know, someone and, uh, or some people in those situations from having to make those decisions because those decisions have to be made,
David: and the reason isn’t just lack of will.
It’s a political calculation In today’s hyperpolarized environment, holding the executive accountable can be risky for lawmakers.
Kevin Smith: I strongly suspect, well actually I, I know there, there are quite a few members of Congress who, when the CLE lights are turned off, they know how the institution works and, and they know that they have to reach across the aisles.
The problem is, and the weird set of incentives that we have now is like, you don’t wanna be caught in public doing that because there’s huge risks to it. And especially now that [00:25:00] you’ve got things like. You know, there have been sort of like these implicit, um, promises, like, you better go along with what we want, or Elon is gonna fund a primary challenge to you.
I mean, I, I find that sort of thing really concerning because I. You know, who Congress is supposed to represent are the constituents, um, and, and the nation, uh, in a broad sense and, and setting up an incentive structure where it’s like, oh my God, I better keep my trap shut and not rock the boat here, or I’m going to have, uh, you know, I’m going to lose my job.
I think that that’s going down a pretty concerning path, I think, you know, um, to defend. Sort of like the Trump, the Trump movement. I mean, I think there’s, uh, a legitimate argument that a lot of people believe government is out of touch. That, you know, the, the, the Trump [00:26:00] was elected to sort of like shake up government and make it pay a little less attention to elites and a lot more attention to the masses.
And I, I don’t think there’s anything wrong with that. That is the system self-correcting itself. You know, where I’m taking issue is on specifics where, you know, in some cases a fly SWAT would be okay. You don’t have to go in there with a sledgehammer. You know, the, i the argument that the government is wasting money, I think is, I think that’s inarguable the government is, is, is wasting, is spending some money on stuff that most people go, oh my God, there’s no way we should be spending money on that, that, that stuff fine.
You know, root that stuff out, but. Even when you get, you know, like $10 billion or $50 billion, you know, numbers that are inconceivable to the average person. Certainly to me, I think [00:27:00] what a lot of people don’t realize is that, you know, and the context of the federal budget that’s, you know, coins in the couch cushions that.
You know at, at one point Elon was talking about cutting $2 trillion is a realistic number. Well, that would basically mean we keep defense, we keep Social Security and Medicare, and we keep interest on the debt and we get rid of everything else. I mean, the math just doesn’t work out. I mean, nobody is having a serious conversation about what do we want from our government and what are we willing to pay for it?
And. I think we’re not, we’re, we’re, we collectively are avoiding that conversation because that’s gonna be a hard conversation. ’cause we want really different things from government and even the techno libertarians. I mean, you know, Elon has certainly not been shy [00:28:00] about taking government contracts, you know, in, in my state, Nebraska.
I mean, it, it’s an agricultural state. The USDA, you know, through crop insurance and, and, and various agricultural programs. There’s a lot to support that industry. Well, I mean, you know, is it fine for some people, but, but, but not for others? I, I think, yeah. I mean, my concern is, is that this is, this is not a, an attempt to sort of like, seriously figure out what government should do.
How much we are willing to pay for it and try to come up with some feasible policy path to get there. It’s, it’s more, I would say it’s performative, but I, I don’t think it’s just performative because the substantive effects are potentially so, so large. You know, there could be some good things that come out of this, [00:29:00] but I, I really don’t think those second and third order consequences have been fully thought through.
David: With Congress reluctant to act, the courts become the last line of defense. But what happens when the executive ignores them? The judiciary is supposed to interpret the law and determine what is lawful, even when it means ruling against the president. But that system only works if the executive respects the courts.
Kevin Smith warns that we’re seeing a dangerous precedent unfold.
Kevin Smith: One of the things that’s, uh, a little bit concerning about what’s going on right now, it’s the precedent that’s being set. Um, you know, currently you’ve got somebody going in and causing a lot of disruption in federal agencies and republicans are cheering them on because essentially the disruption that’s being undertaken, you know, serves the sort of policy and political ends that Republicans are in favor of those same people who are cheering it on.
Now, I’m not so sure would be cheering it on if it’s done by. A [00:30:00] set of Democrats from the political left, and especially when, you know, uh, one of the things that’s concerning is, is like, are they actually going to defy court orders? I mean, if, if, if that happens, then I think, you know, there’s pretty significant line that gets, that gets crossed.
You know, the, and the market is a wonderful self-correcting mechanism. But you know, one of the things that drives the market is the profit incentive. Uh, and if you have a choice between cutting corners or maximizing profit, there’s an awful big temptation to do the former. Now, you might get away with it and make a bunch of money, or it might blow up in your face.
Then it’s sort of like, well, you’re put out of business. The market has spoken. Nobody will buy your product anymore. But when it comes to things like public utilities, if you leave it to the market, when it blows up in [00:31:00] some company’s face, which eventually it will, there’s gonna be an awful lot of collateral damage.
The external there could be pretty severe.
David: James Goodwin takes it further explaining what a full scale constitutional crisis could look like if defiance of court orders continues. I mean,
James Goodwin: we’ve been here before many times throughout American history where a president has not been super thrilled with how a court has decided a case involving their administration.
And the short answer is that judges have this escalating. Uh, toolbox for trying to coax, uh, uh, a present president to, um, accept the ruling. Right. And you just slowly ratchet it up, right? You, you issue clearer decisions, clear and clearer decisions. So we saw that with, you know, like post, uh, or we’ve seen that in, uh, I can’t think of an example off the [00:32:00] top of my head, but you just say.
I understand where you think you’re finding ambiguity, but there’s no ambiguity here. This is what’s clear. And you actually, we’ve seen that, um, with respect to the funding freeze case. We hear you Trump administration say that there’s ambiguity here, but Uhuh, there’s no ambiguity. We, we mean what we said, and then you start r and then it works up the appeals, and then you can start th threatening contempt, right?
Jail fines. Now fines for, for, for most officials. I mean, and it depends on who you, you, uh, um, threaten these fines in or these contempt orders against. Is it lower level officials, the president himself? And you know, the seriousness, which with which those threats land will vary based upon the circumstances.
But, uh, usually we, we haven’t gotten there before in our nation’s history where a president has, or where a court has. Felt compelled to, [00:33:00] to, uh, hold, uh, a government official in contempt. Usually, you know, it, it’s sort of like a, um, uh, uh, a game of chicken right at that point and somebody pulls out before we get there.
But the problem is that’s looking to the past. Right. And that’s really hard to do now because it feels like we’re in unprecedented times. Right. The, the past. I’m not sure what kinda lessons it has to teach right now. So if, if we get there, right, then it comes to the question of, well, how do you enforce a contempt order?
Right? You have to have like the US Marshal service bring an official and, and put him into prison. Well, Trump can order the Department of Justice to hand down an order to the US Marshal service saying, no, don’t do that. Then we are in a constitutional crisis, right? We have, uh, a president openly defying a court order, a coordinate branch.
Uh, we’ve never been there before, at [00:34:00] least not to the point where it’s been like that acutely boiled down. So what do we do then? I don’t know. Uh, I mean, the problem is over the last.
20 or 30 years, we’ve had two sort of simultaneous movements, right? We’ve had this on the one hand, uh, an increasing consolidation of power in executive branch, right? This unitary executive theory, mostly driven by conservatives, but not entirely. I mean, you know, Clinton, uh, was a big fan of this and his White House Council, Elena Kagan.
Now Supreme Court Justice was also. A very articulate defender of some of this stuff. Um, and on, on the other hand, we also have this consolidation of power within a judiciary. So like we had the end of Chevron deference last summer too, right? So this is what I’m talking about, this sort of institutional game of chicken.
Um, both [00:35:00] the judiciary and the, the executive branch are consolidating power within themselves. Congress is the big loser here. I. Congress is just standing by not doing much. And for the most part, that’s worked out fine because, uh, for example, uh, the judiciary has used its increased powers to grant the executive power or the executive branch more consolidated power.
But at some point, those two things are gonna run into conflict. And the question is, is what happens then? Right? Do we have. An imperial presidency, or do we have what is known as aristocracy, where judges basically make policy decisions And you know, that’s like two sons colliding, right? There’s gonna be a big explosion.
I don’t know who wins. Public doesn’t though. Is is the likely,
David: uh, outcome. So what legal mechanisms exist? You stop this from happening, Goodwin lays out the options and they’re not pretty.
James Goodwin: Yeah. Um, I mean, they’re. [00:36:00] There are, like, I was just reading about this the other day. Uh, there are like obscure procedural tools available to the judiciary.
I think they’re in the federal Rules of civil procedure, which I know all of your audience is intimately familiar with. Right. Long story short though, um, right. Federal judges do have some authority to assign independent investigators, I guess, for lack of a better word, if they, if they don’t think the judiciary is up, is going to.
Do a good job of it or is not independent enough. They can also deputize if they think so, I mentioned the federal marshals earlier. If they have some reason to doubt that the federal marshals won’t do what they’re supposed to do, again, they can, um, have some leap way to deputize, uh, a third party to carry out some of those things.
I don’t actually know if we’ve ever had to resort to those tools in like a high stakes sort of way. And even if we [00:37:00] did, it’s very uncomfortable to think about. The judiciary going there, right? ’cause once you’ve sort of broken that glass in case of emergency, it makes it much easier for the judiciary to go and pull out that tool again.
And I gotta tell you, before project 2025 and, and, and Donald Trump came on the scene, my primary fear like threat to democracy was not really the executive branch. It was a judicial branch. I was. Spearing that we were heading down the road towards what I’ve mentioned before, aristocracy, right? And so basically these scenarios that I’m playing out in my head, like what do we do in the face of an out of control executive branch where Congress basically, I.
Doesn’t feel like they want to do anything in response, uh, is to turn to the judiciary and like, you know, our, our, our judges and their, uh, superhero capes come in and juris ocracy saves the day. [00:38:00] Yeah. I mean, maybe they save the day, but you’ve really, you’ve established a new, a new kind of regime Right.
That is very, very uncomfortable to, to contemplate for the long term.
David: Um. The courts end up with like their own police force or something?
James Goodwin: Yeah, yeah, right. I mean, we’re left in this very unsatisfying position as a, people basically rooting for authoritarians or aristocrats, and I don’t like that. I don’t know about other people, but I personally find that very, uh, distasteful.
Um, I really like Congress to, to, to step up and, and represent us again. Uh, I like independent agencies. Our professional civil service doing their thing again, like bear in mind, uh, we were, we’ve spent many, many decades beating up on the bureaucracy. At the time, we just did not appreciate how fundamentally important they were to like the [00:39:00] stability of our democracy.
And now we’re learning, uh, in real time, uh, just, just how important they were. They didn’t just send out our, our checks. They didn’t just clamp down on EPA or on, uh, uh, coal cla pollution. They were like a fundamental bulwark that, uh, sustained our democracy. And we’re losing all of that now, right? Over the last few
David: weeks.
But court rulings aren’t the only issue. The president also controls an enormous source of power federal spending. The Constitution explicitly grants Congress the power of the purse. It grants Congress the power to levy taxes, authorize expenditures and appropriate funds, effectively giving them control over the federal budget.
But recent administrations have found creative ways to sidestep this limitation. James Goodwin explains how executive power has been used to manipulate funding.
James Goodwin: Yeah, I mean, the issue of funding like. As far as the Constitution goes, it doesn’t even seem like a close question, right? The Constitution [00:40:00] grants Congress, the power of the purse, period, the end, right?
And that only makes sense if when Congress passes appropriations bills or, or gives money to agencies if the amounts that are. Handed over or treated both as the ceiling and the floor. Right? Um, and so on the one hand, the, the ceiling issue is, um, uh, it, and it means that an agency can’t spend more money than it gets from Congress, right?
Nobody really disagrees with that. Uh, the question here is, can they spend less? That’s impoundment. Right. And you know, all the, the debates that Congress has over funding legislation would be meaningless if, uh, a president could come in and then spend less on than, than what Congress agreed to. So that’s why it’s really important to take that, that floor seriously.
The, the, the, [00:41:00] the limit on spending less that impoundment implies. The way this all sort of got started is that the, the Nixon administration, you know, signed legislation or, uh, allowed legislation to be passed, uh, establishing agencies like the EPA, and then when it came time to fund them, uh, balked, especially at the EPA and certainly on certain, uh, water pollution programs.
Uh, and so he. Refused to spend the money the Congress allocated to the agents, to the EPAO on these programs. Uh, he impounded it. And this was very controversial at the time, unprecedented. And, you know, when post Watergate, when Congress was reasserting its, uh, authority over the president, they passed a law called the Impoundment Control Act.
Uh, basically making what everybody already knew was the constitutional law. Crystal clear that the president does not have authority to impound. Money and Congress is allocated. This law [00:42:00] has been challenged in, I believe, a co at least two different ways. And in both cases, the Supreme Court was unequivocal that it is a constitutional exercise of, um, Congress’s power.
I mean, of course, Congress could allow. The president to spend, uh, less money than it, uh, is appropriated. But, uh, when Congress doesn’t allow it, that’s the end of the story. Uh, and that’s what the Impoundment Act says. And, uh, the, uh, Supreme Court, I believe on two occasions has said that Congress is well within its rights to do that
David: well.
And, and so who would have standing now to bring a case to, to, to bring this current situation to, to, to, to potentially to the Supreme Court.
James Goodwin: I mean, the most likely candidates would be, uh, people who are affected by the, the funding programs themselves. Uh, and so what we’re seeing is states. Because they’re the recipients of a lot of these grants.
So, uh, unsurprisingly, a lot of the quote unquote blue [00:43:00] states are, uh, stepping up and challenging these funding freezes. And also members of the public civil society that receives some of these grants have also been active, uh, in challenging these things. Because in order to challenge these things, you have to have something called standing.
You have to be able to show the court that you have been injured by an action, and that if the court does something about it, uh, you’ll be made better in some way. And, uh, in both cases, states and, uh, members of the public who receive funding would be able to demonstrate that injury and potential for, for, uh, a remedy.
Uh, and that’s how they satisfy the standing
David: requirement. And while the courts have weighed in on some of these cases, the battle is far from settled. I mean,
James Goodwin: you have to read this against a backdrop of how, uh, the Supreme Court has decided other cases relating to presidential assertions of power. Right?
Uh, and there’s been a lot of them lately. So the Trump versus US last summer, which basically granted the president immunity [00:44:00] for official acts cases related to, uh, independent regulatory agencies and how that implicates what is known as unitary executive theory. So when you look at that. Emerging body of law, the court seems to be heading in a very clear direction.
This idea of whatever we, if we wanna carve out this zone, this executive. Power Article two, zone of Authority for the President. However, you know, the outer limits are defined. Anything within that, um, is the p president has the final say over, uh, and Congress can’t change. The courts can’t change that, uh, within that zone.
This the President’s Supreme. So that, that’s sort of the direction we’re heading. The question is, is whether something like impoundment falls into that zone or not, right? I could very easily see the Supreme Court as pro unitary executive as a, or the, the conservative majority of that is [00:45:00] as pro unitary executive theory, as they are saying Uhuh no, uh, spending is not central to whatever we might think of, uh, as like an executive power.
In fact, uh, the Constitution makes it pretty clear that this is, uh, Congress’s power under Article one. We’re, we’re not gonna go there, we’re not gonna import that. Into the zone of Article
David: two, beyond funding. Another way to consolidate power is by replacing career officials with political loyalists.
Kevin Smith warns about the return of a system where jobs and government are handed out based on political allegiance rather than expertise.
Kevin Smith: I mean, this is implicit rather than explicit. And, and I might be overreading things here. So it, you know, anyone pushes back on the, uh, on this. I, I’m willing to grant, they have a defensible case, but it’s almost as if it’s like we want to go back to a spoil system.
You know, I won the election, uh, that last crowd. I’m gonna fire ’em all. [00:46:00] I’m gonna install people who are loyal to me. Off you go. And we have had. Including the federal government has run its agencies on a spoil system below. I mean, Abraham Lincoln wrote about being driven to distraction by people wandering through the White House, asking him for a job.
We’ve had these sorts of spoil systems, and the problem is, is they’re not efficient and they are often more corrupt. This is why we sort of like have a civil service system where, you know, you typically have to, the idea is, is you get your job because of what you know, rather than who you know. And I think there’s, uh, you know, a reasonable conversation to have.
And actually a conversation we probably should have is about, you know, what sort of reforms do we wanna make in, uh. Sort of like civil service, uh, you know, are there [00:47:00] different ways in which we wanna think about how we get people into public sector jobs? Because I think, you know, some, certainly some conservatives, I think have legitimate criticisms of how we, how we do that right now.
But again, that, you know, the difference between having that responsible conversation and maybe making some adjustments. And personnel matters in the federal agencies is a long, long way away from going in there, you know, asking everybody to resign and then seeing what happens without quite sure what that’s what that’s going to be.
I.
David: Right.
Kevin Smith: I mean, I think the first one is less sexy. It’s slower, it’s more boring, but it’s more likely to have a, you know, useful and productive outcome than the second one, which I think is sort of like a sugar high certainly makes you feel good in the short term. Yeah, we got those government bureaucrats and in the long term it’s [00:48:00] like, oh, well boy, it sure would nice to be to have a few experts around in a federal agency while we’re.
Facing this problem. It’s too bad. They’ve all gone.
David: And Goodwin highlights a key misconception that government agencies are inherently biased against conservatives, which has fueled calls to dismantle them.
James Goodwin: There’s a political, uh, asymmetry to public service, right. People we were concerned about the public had to be liberal.
David: Yeah. And, and I think that, you know, but I, I, I think the problem is like blowing it up is not the solution to that problem.
James Goodwin: No, no, not at all. And you know, this is. A point I was making the other day was somebody we know, you look at something like Doge, right? And what is it? What is it? It’s effectively doing?
It’s replicating the Office of Management budget. It’s replicating general services administration, office of Personnel management, uh, government accountability Office, office of inspectors General, and so on. Right. Okay. So maybe those aren’t [00:49:00] working great. Did we even try to fix those things before we instituted Doge?
No, no. There was never a discussion about fixing any of those things before we did that, and that’s why it, it is impossible to take Doge seriously because of that, because any reasonable person would’ve said, well, what’s what? What can we do about the existing system that can be fixed? No effort to do any of that.
David: Part of the challenge is that many Americans don’t fully understand how their government works, which makes it easier to manipulate public opinion. A recent Ugo poll found that 74% of Americans believe that Donald Trump should always follow the Constitution, even if it limits what he can get done. And it’s important to note that this isn’t just one side of the aisle talking.
The numbers break down like this. 82% of Democrats, 73% of Republicans, and 71% of independents all agreed. That’s a pretty strong response. It suggests that despite the noise and division, most Americans, regardless of political affiliation, value the rule of law. Now, of course, the tricky part is whether we all mean the same [00:50:00] thing.
When we say follow the constitution, interpretations can vary, and that’s where debates happen. I.
Kevin Smith: You know, the, the Constitution has a, a pretty important, even sacred, uh, place in, you know, the American belief system. So I, I, I think you’d be hard pressed to get Americans to say, yeah, he shouldn’t follow the Constitution.
I think the problem is, is that a lot of Americans don’t understand the cons, the Constitution, and that, you know, undergraduates are constantly shocked when I say. You know, the government was basically designed not to get anything done. I mean, it gets things done under a specific set of circumstances, uh, you know, a very specific narrow path to getting something done.
And there are a million ways to, for the government not to get anything done. And it was absolutely designed that way. And I mean, and I, and you have to have not just, I can not just have sympathy, I can have empathy with [00:51:00] people who get irritated at government. Listen, I get irritated with government too.
You know, I was just down at the DMV trying to register car, registered car. I was pretty dang irritated, but you know. One, you can understand that irritation and you can accept that maybe something should be changed, that government agencies are doing things that are not in the public interest, they’re not particularly supported by Congress.
They should be stopped. Fair enough. I think there’s ex that, there’s examples of this, but blowing whole things up is throwing babies out with the bath water.
David: But this isn’t just about what the government does, it’s about what we do. Goodwin argues that democracy requires active participation beyond just voting.
James Goodwin: The first thing I would say is the best thing any citizen can do is help other citizens who are not I. Who are being harmed by what’s going on right now. Right? So if somebody who, a government employee who [00:52:00] lost a job, or somebody who works for an organization that just lost funding, I mean, this is the time for like that kind of mutual aid.
What I would love to see for Americans is for everybody to develop what I call a democratic persona, right? You don’t need to be. An expert at everything the government does. My goodness, why would anybody want that? What is the point? But it is important for everybody to engage in their democracy in way in between elections, right?
Because frankly, that’s where democracy really happens in a lot of ways. And there’s just so many different ways to do that, or at least there are for now. I mean, who knows in a couple of months and you know, that could be, uh, commenting on rules. That, uh, impact you or that you’re particularly interested in?
Let’s say you’re really interested in kids food safety. You know, the, there’s policies you can weigh in on there. Uh, you can get involved in citizen [00:53:00] science in various ways. Let’s say you run by, uh, a factory in your town and you cross a river that’s by there, so you can keep an eye on the health of the river and report that.
Right? Uh, and that’s what I mean. Everybody can sort of develop their own little niche like. What sort of appeals to their unique personality and really refine and hone what it, what their democratic persona is, how they want to engage in a democracy. And it doesn’t have to be everything. It can just be one thing.
And when you sort of, when you get engaged in that kind of granular level. Democracy just works so much better. I mean, this is what the Tocqueville was basically talking about, right? And uh, his work is about how we were engaged citizens in our day-to-day lives. And it wasn’t just about voting. In today’s society, that’s gonna look different, right?
But that’s the way I sort of envision it looking in a modern society.
David: So where does this [00:54:00] leave us? Have we already passed the point of no return or is there still time to restore balance? James Goodwin offers his assessment of the state of democracy in America.
James Goodwin: Maybe it’s just because I need to go to sleep tonight.
I’m not sure if I’m ready to, to, to, to be that dire. I guess I have to cling to some hope that our other institutions will stand up, like they will push back on some of the worst of this. And, you know, so far they already are to the extent that the Trump administration is winning at all, uh, in the lower courts, quote unquote winning.
Uh, it’s because of things like standing, like procedure, not, not merits, but you know, the, the real test will be as these cases move up the ladder and the judiciary as they get appealed up to where there’s more. Conservative judges or in whether, you know, Trump appointed judges or George W. Bush appointed judges are willing to put our country ahead of their party.
Um, you know, I [00:55:00] think that’s, that’s what’s gonna push us from something like a four to a zero I. The other thing is the midterm elections, right? Yeah. We’re not a democracy. We’re a representative republic, but that’s gonna be our first test of being a representative republic. If states start engaging in just full blown, uh, voter suppression and suffer zero consequences, and basically the election results don’t matter, then obviously we go from.
Four to like negative four, right? Uh, I, it’s all just too scary to contemplate, right? I gotta sleep tonight. Your listings need to sleep tonight. So that’s all possible. I, I have to clinging to the hope that we’re not going there. And at the end of the day, um, I still hold a lot of faith in our administrative state or bureaucracy that, that there will be enough people in there who are not scared, who are not bullied, who are still [00:56:00] able.
To preserve, like, even just like the smallest flickering of light until, you know, another election in the future, uh, restores us to something more resembling, sanity or democratic, uh, sanity.
David: And finally, he reminds us that everyone has a personal threshold, an issue that if crossed signals that democracy itself is in danger.
Draw a
James Goodwin: line, right? Make a point where you say like, this is where I’m not gonna accept things anymore. And once that line is crossed, switch in the uh, opposition and all of us are gonna have different lines and that’s fine. Right? But have your line. I think my line is, so you’ve heard Schedule F. Mm-hmm. So my line is if the court that’s being challenged in the courts.
That is ultimately upheld. That is my line, because that is basically the end of our independent bureaucracy as we know it. And [00:57:00] at the end of the day, I just don’t see how we sustain a democracy without it. Um, so yeah, that, that’s my line. So
David: where do you draw the line and what will you do when that line is crossed?
Thanks for joining me for this episode of Outrage Overload. If you found this discussion valuable, consider sharing it with a friend. And as always, let’s work together to lower the temperature and protect democracy. Many thanks to our guests, Kevin Smith and James Goodwin.[00:58:00]
And that is it for this episode of The Outrage Overload Podcast for links to everything we talked about on this episode. Go to outrage overload.net. If you enjoyed this episode, if you found it interesting, please tell some friends about it. Uh, post it to your social media. Better yet, text someone. Even better talk to someone in real life.Tell ’em about this show. I. I really appreciate it. Okay. See you in a week or [00:59:00] two.