Trump takes another bite out of congressional power with TikTok, beautiful bill

Having the Air Force fly a B-2 bomber overhead during a signing ceremony for a budget bill would have in a different time seemed like overkill. But in our time of both public spectacle and congressional sclerosis, it seems about right.

After months of debate, Congress delivered a tax and spending package that is loved by none, which is usually a good sign. Budgets aren’t supposed to be popular. But this is an unusually ambitious budget — or, to be more precise, pseudo-budget.

First, some context. In 1974, when Congress was up on its hind legs about the many abuses of executive power by Richard Nixon, lawmakers passed the Congressional Budget and Impoundment Control Act. Nixon, who was trying to fend off impeachment in the summer of that year and looking to appease Republicans in Congress, signed the bill in July — in between the publication of "All the President’s Men" and the Supreme Court decision ordering him to release his Oval Office tapes.   

Future presidents would always hate the impoundment part of the law, which forbids them from withholding money appropriated by Congress, but they would learn to love the budget part, which created the process we all now know as reconciliation. That was not how it started.

The idea of reconciliation was to increase congressional power by making it easier to produce budgets. Congress passes a nonbinding budget blueprint and can add a line allowing for reconciliation at a later time, as the current Congress did in May. Originally, that reconciliation was to do what the name suggests: reconcile the actual budget with the final congressional priorities in an expedited manner, basically a golden ticket for legislation about the budget — a place of privilege on the calendar and, most importantly, an exemption from the 60-vote threshold in the Senate.

It worked as designed at first. The first-ever reconciliation package came in 1980 as lawmakers teamed up to address the scandalously large budget deficit. It might have gone as high as $80 billion, nearly 3 percent of the entire national economy, and action was needed. This sounds quaint in a time where we are rolling toward another $2 trillion deficit this year, more than 6 percent of the economy as a whole. But in those days, it was considered politically important in both parties to at least appear concerned about the debt. 

Former President Jimmy Carter signed the package of spending cuts and tax tweaks in the lame-duck session after his defeat, an act of magnanimity and responsible governance equally as foreign to our own time as being concerned about federal borrowing being just 3 percent of the gross domestic product.

That was mostly how it worked for the next decade: reconciliation being used to streamline the passage of limited but still politically unpopular cuts to spending or increases to taxes with the goal of keeping the deficit in check. Then, in 1993, that changed. 

During the Reagan and George H.W. Bush administrations, Republicans had never enjoyed unified control of Washington. But with Bill Clinton’s victory in 1992, uniparty control returned to the federal government for the first time since reconciliation had been in use. Without a supermajority in the Senate, Democrats would have had to win over at least a few Republicans to advance the new president’s agenda. Instead, we got the 1993 Omnibus Budget Reconciliation Act, which was a funny name since it wasn’t reconciling anything but rather a substitute for a budget.

Instead of increasing the power of the legislative branch by making it easier to win spending fights with the executive branch, reconciliation became a tool to enhance the power of the presidency when his party had narrow majorities in Congress. Republicans, of course, returned fire when George W. Bush became president and used the tool to push through Bush’s tax cuts to reverse Clinton’s tax cuts.

Then, in his first term, Barack Obama oversaw another innovation in the degradation of congressional power, using reconciliation to not change tax rates, but to invent a whole new health insurance system for the United States. The journey from congressional empowerment to partisan cudgel was complete. Presidents don’t like the Senate filibuster because it usually demands some kind of bipartisan consensus to enact big legislation, but this relic from the summer of 1974 when Richard Nixon was feeling the heat had turned out to be very useful.

Fifteen years after ObamaCare, we live in a world where Congress seldom even tries to pass real legislation and just waits for uniparty control to jam the president’s agenda through the reconciliation loophole. We went all the way from empowering Congress for deficit reduction to flying a bomber over the White House to celebrate trillions in new debt. 

Obama’s other major advance in reducing congressional power came in his second term when, after steadily maintaining that he did not have the power to change immigration law unilaterally, he did exactly that. 

Not long after his innovation in reconciliation, Obama was asked why he didn’t just exempt immigrants who illegally came to or were brought to the United States as children from deportation. In a campaign event for Latino voters ahead of the 2010 midterms, Obama famously said, “I am not king. I can't do these things just by myself.” His party lost that election, badly. Rather than disappoint Latino voters again in 2012 when he was running for reelection, Obama just went for it. In June of that year he gave us Deferred Action for Childhood Arrivals, an executive action that spelled out how Obama would refuse to enforce the immigration rules duly passed and signed into law before him.

What he discovered was that the power to grant immunity from the law is greater than the power to enforce the law. There had always been the idea of “prosecutorial discretion,” by which the executive branch had the authority to set priorities for the enforcement of laws in order to make the best use of limited resources. Obama took the next step and explicitly said that he was refusing to enforce the law in accordance with his own policy aims. He was making new law for his own political advantage and to the benefit of a preferred group of people.

But the change was mostly popular, and since the beneficiaries were sympathetic figures, Obama correctly concluded that, like the diminution of congressional power for his health insurance law, members of his party would vigorously defend his decision to violate the spirit of the Constitution. So it could have been to no one’s surprise that his successors would build on the achievement and that a supine Congress would go along with new abuses and even more executive action, provided the partisanship lined up.

That’s not to say that Congress stopped passing real legislation altogether after 2012. Joe Biden’s presidency provided two notable examples of the kind of bipartisan lawmaking that our system envisions. First, an infrastructure spending package. The administration mostly followed that law but put up lots of regulatory barriers to actually spending the money. 

The second big bipartisan action of Biden’s four years came in April of 2024, when with 79 votes in the Senate, Congress decreed that the Chinese tech firm ByteDance would have to sell its wildly popular social media app, TikTok, to an American firm by Jan. 19 of this year or else companies such as Apple and Google would be forbidden from selling the app to American users.

At the time, Republicans offered the loudest voices about the need and the urgency for disrupting what they described as a river of Chinese propaganda flowing into the mobile devices of America’s youth and a dire national security risk. But when a Republican president took office the day after the law was supposed to take effect, he promptly waved it away and instructed his Justice Department to make it clear to those American tech companies that the law would not be enforced.

What was assumed at the time to be a bit of a wink in the old spirit of prosecutorial discretion was actually something quite bigger, as we now know that the administration told the companies that it was “irrevocably relinquishing” its claim on enforcing the law for as long as President Trump held that following the law undermined his “core presidential national security and foreign affairs powers.”

Unlike Obama, who held that he was deprioritizing the enforcement of the law in some circumstances, Trump holds that because he believes the law does not align with his other priorities, it is simply not the law. Instead of trying to work around the law, Trump just nullified it. Obama’s tricky tactics have been replaced by Trump’s blunt force.

But Trump’s bet is similar to Obama’s. He knows that the people who are most sensitive to constitutional arguments about the separation of powers, like Sen. Rand Paul (R-Ky.), were also the opponents of the original law on the grounds that it violated free speech and property rights concerns. Will they sue to demand the enforcement of a law they don’t think was constitutional in the first place? Trump will probably get his way and kick the door open wider still for the next president to discover new ways to abuse Congress.

It’s been a long way down for the Article 1 branch from making Richard Nixon sign off on limits to presidential power to Trump’s celebration of a servile Congress, and one suspects we’re just getting warmed up.