Much of the energy world is waiting on the Trump Administration to disperse funds that Congress directed to be used to support specific types of energy projects. The Administration’s withholding of that money is just one small stream in a firehose of illegal, unilateral attempts to reverse the policies it doesn’t like. If Republican voters were ever to understand these efforts in their full context, many would strongly disapprove. But the truth is that most of them will never get the chance to understand it — not because they are ignorant, immoral, lack curiosity, or turn a blind eye to the news. Rather, it is because their “news” will reframe these illegal actions as heroic attempts to save the nation from the threat to American democracy posed by liberal political elites.
Presidents Cannot Unilaterally Delete Energy Policies
The energy project money currently being withheld includes billions of dollars in grants to local communities to build EV charging stations, as well as tax credit disbursements to developers of renewable energy projects, carbon capture projects, hydrogen production projects, and more – all authorized by the 2021 Infrastructure Bill and the 2022 Inflation Reduction Act (IRA). Many of these projects were intended to take advantage of incentives in those laws to bring jobs and decent wages to economically depressed areas.
Federal courts have never recognized executive authority to withhold, en masse, funds that Congress appropriated and authorized for specific purposes. The courts slapped down the only previous president (Richard Nixon) to attempt something like this. Some of the withheld monies breach contracts between the recipient and the federal government. Unsurprisingly, federal courts have already ruled against the Administration on the legality of the funding freeze, but the Administration has ignored that ruling as of this writing.
Its objective seems to be to remake the executive branch without the aid of Congress. For its part, Elon Musk‘s Department of Government Efficiency (DOGE) has so far ignored the statutes that create and fund various federal programs, and the statutes that govern the civil service. DOGE is ostensibly rooting out inefficiency[1] in the executive branch, but it seems to equate “inefficiency” with “programs Elon Musk doesn’t like” and/or “agencies Elon Musk believes are unnecessary.”
The Trump Administration’s other efforts to shrink the size of the executive branch also look illegal. On the mass dismissal of federal employees that has occurred in the first month of the new administration, Stanford’s Anne Joseph O’Connell has offered an observation and a warning: “What President Trump did violates the law. Now whether this conservative Supreme Court would uphold that law is uncertain.” In other words, the Administration is hoping to persuade the Court to adopt a novel view of the constitutional separation of powers, one that would grant the president the power to ignore statutory mandates as part of his Article II responsibility to execute the laws. The Trump Administration would use that power (if the Court grants it) to rewrite the Infrastructure Bill and the IRA according to its own policy preferences. It would exert a kind of de facto line-item veto[2] over specific provisions of those statutes.
Several lines of well-established separation of powers precedent suggest that the Court will not grant the president that power. As another legal scholar, Peter Shane, noted recently in the pages of The Atlantic, the Constitution gives Congress the power to “make all laws necessary and proper for carrying into execution” the “powers vested by this Constitution in the government …, or in any department or officer thereof.”[3] Thus, most of the money being withheld ought to eventually be disbursed, civil servants rehired, and existing public sector programs vindicated in court. But in the meantime damage will be done. And of course the current Supreme Court has shown its willingess to overturn longstanding precedents and to loosen limits on Donald Trump’s legally questionable behavior.
The damage being done to congressionally-authorized energy projects and programs is only part of the Trump Administration’s broader attack on the rule of law. Yesterday my former University of Texas colleague Steve Vladek explained how openly and disdainfully that attack is being waged. Vladek described the obvious quid pro quo agreement by which Attorney General Pam Bondi ordered U.S. attorneys to drop corruption charges against New York City Mayor Eric Adams in return for Adams’ agreement to allow immigration officials into New York City facilities. As Vladek noted, Bondi’s assistant AG subsequently demoted the federal prosecutors who had been prosecuting Adams, seemingly because of their objections to dropping the case. Five federal prosecutors, among them a conservative former clerk for Antonin Scalia, resigned over the deal; another released a blistering attack on it in a letter to Bondi’s assistant AG.
Said Vladek:
What’s striking about this is not just how transparent what’s actually happening is; it’s [the Assistant AG’s] candid admission, in today’s letter, that “the policies of a democratically elected President and a Senate-confirmed Attorney General” take precedence over a Justice Department lawyer’s oath … to the Constitution….
As if that wasn’t enough, later on Thursday came news that Apple and Google were restoring access to TikTok in their app stores in response to letters from Attorney General Bondi promising that they wouldn’t be prosecuted for violating the TikTok statute. … By all accounts, the Bondi letters simply followed the directives President Trump had spelled out in his January 20 executive order—promising no prosecution and also providing the Department’s legal conclusion that supporting TikTok in app stores would not, in fact, violate the TikTok statute.
… [W]whatever else might be said about an Attorney General’s choice to not enforce a federal statute that the Supreme Court just upheld against a constitutional challenge, putting into writing that companies like Apple and Google are not violating the statute when they transparently … are … is something else altogether.
Why So Little GOP Resistance?
And so we sit here in the middle of a full frontal assault on the rule of law and congressional authority, one that is unfolding just as many academic observers have anticipated (and as I describe in my book). Many conservatives disapprove of this. The Cato Institute’s Gene Healy put it this way: “I work at Cato. I’d like to see a lot of agencies eliminated. I don’t think an effort to do that is going to get very far without Congress.” But among Republican politicians, very few can afford to stand up against this assault no matter how they feel about it, for reasons I outline in chapters 3 and 4 of Climate of Contempt.
If Republican politicians want to remain in elective office, they must kowtow to their party’s most ideologically extreme and negatively partisan voters, because that subset of voters hold those politicians’ futures in their hands. Partisan polarization has separated voters into solidly red or solidly blue jurisdictions in which one party dominates numerically, and the nominee of that party faces little or no risk of losing a general election. Consequently, it is the primary election that matters. And the voters who dominate primary elections are the most ideologically extreme and negatively partisan voters. GOP partisans exist in an insulated information bubble that provides 24/7 justifications for the Trump administrations actions. It is not only Fox News that is willing to provide viewers with narratives supporting Trump even when Fox anchors and editors know those narratives are untrue. It is also the vast social and ideological media world that amplifies lies and fear of “the other side.”
So, most Republican voters will never see news stories that explain how serious this ongoing assault on the rule of law is. Many will have consumed decades of propaganda portraying bureaucrats as a “deep state” and that poses a threat to the most foundational American values. Never mind that civil servants (i) keep popular federal programs running, and (ii) their expertise and ability to deliberate tends to produce better policy decisions than Congress can produce. Internet populism has effectively delegitimized bureaucrats nevertheless. It also undermines the legitimacy of the law (as the product of elite dominance) from both ideological poles.
That brand of bitter populism may exist within both parties, but it has taken control of only one — the Republican Party – and it has done so from the bottom up. That is why the only prominent Republicans who stand up against all of this illegality are those who are out of office or planning to leave office. Ex-Representatives Adam Kinzinger and Liz Cheney are evidence of what happens to sitting members of Congress when they stand up against the party’s MAGA populists.
That is how the Trump Administration’s illegality “hides in plain sight.” On the one hand the Administration is open about flouting the law; on the other, it can afford to be open knowing that consumers of right wing media will never really learn about its actions in the ways that other voters will.[4] So as I have repeated here ad nauseum, the future of our liberal democracy is in the hands of Republican voters. That will remain true regardless of whatever guardrails the courts place around this attack on the executive branch, for two reasons.
First, there are members of Congress who know better, but kowtow to Trump anyway. They have acceded to a long list of unqualified, intellectually and morally unfit executive branch nominees already. They understand that objecting to those nominees makes their re-election risky. So, while we can denigrate them as spineless “Vichy conservatives,” their electoral calculation is probably right. And we can hope that this represents some sort of high-water mark in our transition toward a more authoritarian system. But that hope is probably misplaced.
Which brings me to the second point. The propaganda machine — advocacy and social media — continues to cultivate fear, resentment and misunderstanding among its readers and viewers. Therefore, Republican politicians must keep marching in lockstep with Donald Trump or be replaced by others who will. Indeed, one particularly troubling sign is the willingness of the Republican senators from the few competitive states who are up for re-election in 2026 – like Thom Tillis (R-NC) and (the perpetually-concerned) Susan Collins (R-ME) – to vote to approve Trump nominees. We might wonder if that is a sign that the propaganda machine is continuing to transform traditional conservatives in those states into MAGA populists? Perhaps.
Shaken Voter Syndrome
Mainstream and left-leaning media and politicians can try to grab voters by the shoulders and shake them (rhetorically) into acknowledging the full nature and magnitude of the threat these illegalities pose. But they are screaming into a void. The 2024 election is proof that outrage is not moving voters in the desired direction. Those voters either never see those messages or have been trained by their information feeds to discount the messenger.
Rather, until pundits, reporters and Democrats everywhere focus on the voters driving Trumpism and how modern media shapes their beliefs, the risk to liberal democracy will grow. So talk to your MAGA relatives and friends. Don’t assume that they are irredeemably ignorant or venal. Let them know why you worry about the decline of the rule of law, or the loss of an important government program. They won’t hear about these problems elsewhere, so let them hear about them from you. – David Spence
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[1] The idea that the executive branch is rife with “waste, fraud and abuse” is an old trope that turns a blind eye to the fact that one person’s wasteful spending is another’s essential government program. Both the Clinton Administration and the Obama Administration learned as much when they instituted serious, high-profile efforts to root out government waste. The DOGE effort so far seems to be characterized by a mix of hubris and naivete about how the government works. In any event, the U.S. Constitution establishes a process for resolving disputes over which programs are in the public interest and which are not; it does not entrust those choices to presidential deputees like Elon Musk, let alone bright tech sector teens nicknamed “Big Balls.”
[2] The Supreme Court ruled that a presidential line-item veto violated the constitutional separation of powers in INS v. Chadha, 462 U.S. 919 (1983).
[3] Article I, Section 8, Clause 18.
[4] My book’s website includes a link to Blindspot, a service that tracks differences between various forms of ideological or advocacy media, offering a window into which voters see which stories.
