"The absolute antithesis of good governance."

There have been so many changes within the federal government under Donald Trump that it can be difficult to keep track. Tariffs, DOGE, ICE, the One Big Beautiful Bill Act, the gutting of the U.S. Department of Education—all of these taking something of a wrecking ball to national politics and policy as we know it. With so much attention understandably on some of this big-ticket news, I’ve been worried that the public policy community, specifically in education, has been under-focused on some of the lower profile efforts to severely undermine decades of regulatory and administrative guidance that meaningfully impact families across the country. I can’t think of anyone better to speak to this than Sam Bagenstos. By day, Sam’s a professor of law down the road from me at the University of Michigan. He specializes in civil rights, labor and employment law, health law, and governance. That, my friends, is a lot of expertise across a variety of issue areas.But Sam is also a longtime veteran of the kind of legal and policy circles that Trump has tried to overthrow, and that we’re going to need to rely on again for any sort of rebuild. Sam served under President Biden, first as general counsel at the Office of Management and Budget (OMB), then as general counsel at the Department of Health and Human Services (HHS). He also served under President Obama at the Department of Justice (DOJ), as the No. 2 official in the Civil Rights Division. He’s also been part of several statewide committees in Michigan and beyond.All of this is relevant to where we are today under Trump, but given how much of the current administration’s efforts are being directed by Ross Vought at the OMB, Sam Bagenstos has particularly unique insight into where we are and where we’re headed.A Conversation with Sam BagenstosWelcome to the The Forum, Sam. Just to get started, tell us a bit about your legal and professional background and where that began to connect formally to government service.So as you said, I currently teach at the University of Michigan. I’ve been on the faculty there since about 2008, but I have taken a couple of leaves to serve in the federal government since my time there. I was, during the Obama administration, the principal deputy assistant attorney general for civil rights at the Department of Justice. So in a leadership position there. And then for the entire Biden administration, I was on leave. I spent the first year and a half starting at the moment of inauguration as general counsel at the Office of Management and Budget. And then in June of ‘22, I moved over to the Department of Health and Human Services where I was the general counsel until pretty much the end. So that’s the work I’ve done, and I continue to do a lot of work relating to the government, although not in the government at this point.As somebody who works pretty closely with policymakers in states, and to some extent the federal government. I really… I can’t overstate how important the jobs that you just described are. What’s kind of a nuts and bolts piece of that before we get into some of the specifics? What’s the portfolio look like across kind of some of these agencies?Yeah, I mean, so they’re all sort of different. Probably the widest portfolio I ever had was working at the Office of Management and Budget. OMB is the sort of nerve center of the federal executive branch. They’re the folks who make sure that all of the agencies across the executive branch are doing what the president wants, consistent with the law. And we’ll talk a little bit about that balance in a minute, I’m sure. And so, what that meant was my responsibility as the general counsel for that agency in the White House was everything, everything that the executive branch did.So I didn’t know whether I’d be walking in and dealing with some environmental issue or obviously COVID was a huge issue when we started, or evacuating folks from Afghanistan was the thing we had to deal with.But it was literally anything that was going on in the federal government was something I dealt with, and the legality of all of those issues. And so that was every regulation across the federal government, making sure it was checked to be consistent with administrative law. All of our spending, the drafting of major legislation, like the COVID recovery bills, the American Rescue Plan, and the other bills that President Biden did.At HHS, sort of similar job, but narrower scope. But I will say the Department of Health and Human Services is the largest cabinet department by budget. So it was about $1.73 trillion when I was there.And about 40% of the regulations issued by the federal executive branch come from HHS, so it was again just a very wide ambit. At the Department of Justice, earlier in my career, it was much more focused on bringing enforcement actions to make sure that civil rights laws were complied with, so bringing and threatening lawsuits around the country, negotiating agreements with states and localities and businesses to make sure they complied.Can you give us a sense of what’s going on right now in these various agencies and what we should be most concerned about?I think at the highest level, the most important thing that’s going on is you have this pervasive effort to transform the federal executive branch into something that’s not implementing laws and policies enacted by Congress in an impartial way, but instead is using the tools of government as a weapon to serve the interests, not just of a political party and not just of a faction within the political party, but of a person and the people around him: Pervasive weaponization, politicization, and personalization of the government around Donald Trump and the folks around him, and the use of every tool of government to reward the friends of Donald Trump and punish the enemies of Donald Trump. That is the absolute antithesis of what a good government or a republican government should be. So that’s at the highest level. We can talk about what that means for particular policies and actions, but that’s the most important takeaway.I want to ask about the administrative and regulatory state here. Outside advocacy groups, including in education, are often understandably focused on legislation. But a lot of what Trump’s done has been more on the administrative side. Legally or not. Can you talk about some of the specific non-legislative tools that have been deployed? If you can think of one that’s maybe patently illegal and one that’s, at least, more legally questionable or defensible on the letter but seems plainly abusive?I think there are a few obvious ones to talk about here. And let me start, just because you started with education, what Donald Trump is doing to the Department of Education.So what you have is a department that was created by Congress. You have provisions adopted in appropriations bills by Congress that say you can’t eliminate the Department of Education, Mr. President. We are continuing to fund it and we are barring you from eliminating it. And yet what you have is this dismantlement of the department done entirely through administrative processes. So what they’re doing is essentially farming out as many of the responsibilities of the Department of Education as they can to other agencies.You know, legal tools that they point to there: so there’s a tool called the Economy Act. I worked with this a lot at the Office of Management and Budget, which is basically, if one agency has a responsibility to do something but doesn’t have the ability to do it, it can contract with another agency to do it.And so what they’ve done is said, aha, Department of Education is just gonna contract with the Department of Health and Human Services to do all the disability work. It’s gonna contract with the Department of Labor to do job training work. It’s gonna contract with the Department of Treasury to do all the student loan work.And pretty soon you have no Department of Education at all. And so that’s, you know, taking this existing legal tool that you can see a use for it in particular cases, using it in a way no one could ever have imagined. And, you know, I think that’s abusive.I would think there’s a plausible argument that that’s illegal. It’s certainly inconsistent with the judgment made by our elected representatives that we are supposed to have a Department of Education, that it’s good for the people to have a Department of Education. Okay, so that’s one thing. Take something that’s much more abusive, maybe, and certainly much more in the nature of rewarding friends, punishing enemies, um, and also much more clearly illegal. So, one of the things we’ve seen this whole administration do is use its power over money and particularly grant funding or federally funded programs where the money goes to states and localities and other entities, use that as a tool to attack people who are on the bad side of Donald Trump for whatever reason, right? I mean, we actually, you know, we’re recording this on Wednesday. We just saw yesterday the federal government say they’re going to withhold an enormous amount, I think a billion dollars, of Medicaid funds from two states. That all seems to be about punishing them because they’re blue states. We’ve seen lots of funding cutoffs that are all about punishing blue states, punishing them supposedly for violating terms and conditions of agreements.But violating them in ways that red states are probably doing the same thing and are not getting the same treatment. We’ve seen the shutting off of funds to institutions of higher education to force them to come to heel. I mean, look at what happened to Columbia, which ultimately did knuckle under. Look at what happened to Brown University, which did knuckle under. Harvard sued and actually prevailed in its lawsuit that these threats were unlawful. The University of California was going to negotiate a settlement with the Trump administration, but the faculty and faculty unions got together and filed a preemptive lawsuit, and the court said that what the Trump administration was doing was unlawful there. And what they’re doing is saying, look, you’re a university, you depend on hundreds of millions of dollars a year of federal funding for research programs. We’re going to cut that off until you do exactly what we want. This is plainly abusive and a violation of law. But there are so many of these examples where what the Trump administration is doing is using the tools it has cut off federal funds to investigate or threaten investigations or prosecutions in order to coerce people to do their bidding and in order to punish people who seem to be on the wrong side of the administration for reasons having nothing to do with the laws that are being enforced.Let’s talk more about one piece of this. OMB has recently announced it’s reviewing uniform guidance for federal awards. Which basically is bureaucracy speak for “it’s looking for new ways to hold back funding.” This is one (of many) potential changes that could in my world fundamentally alter the federal relationship to education. But can you just walk us through this particular piece, this uniform grant guidance, what they're trying to do mechanically, and why you think it’s wrong?So there are across the entire federal government many, many programs that Congress has created to give grants to various entities. Sometimes it’s for scientific or medical research from NIH or National Science Foundation. Sometimes it’s for job training, which could be from the Department of Education or Department of Labor. Sometimes it’s for programs to support education from the Department of Education anywhere, housing programs, any kind of program, you name it. And what this uniform grants guidance would do is it would adopt a uniform grants regulation to replace what we have now, which is a general set of guidance for each agency to make its own rules with a single uniform set of rules that govern all the grants.And uniformity, you can have some arguments, is that good or bad? The problem is the specific rules that would be adopted, which would do things like, say, peer review can only be advisory.And any grant determination whether to issue a grant and to whom has to be made by a political appointee and has to be made by a political appointee according to what demonstrably advances the president’s priorities.Now, Congress has created a whole bunch of very specific grant programs to serve various kinds of interests and to pursue various goals, which may not be the president’s goals. In fact, we know they’re not the president’s goals.Congress has specifically required peer review for grants from some agencies like NIH and NSF, where what we’re trying to do is advance the science, and so we want the scientific community to have a significant amount of control over where those grants go. So that’s, I think, illegal. It’s flying in the face of a congressional determination, and it’s likely to lead to less development of knowledge and less development of useful knowledge, right? So it’s gonna harm the public. It’s gonna mean…people are gonna die, people aren’t gonna learn as much, I mean, you know, it’s really very serious stuff. Also, there’s a set of forbidden topics in this rule that says, you know, we can’t be financing quote-unquote gender ideology, which means, you know, saying that LGBTQ people should be treated equally and with respect. We can’t finance quote-unquote, illegal DEI, which is a term that this administration throws around, that it’s never been clear what they mean by it, except efforts to promote equality on the basis of race or sex; ghat grants should not be used to promote illegal immigration. Again, nobody is using grants to actually pay for people to cross the border illegally. Promote illegal immigration seems to be used in a way that’s, like, to flag people talking about the value of immigrants, however they came into this country, to their communities. So that’s a major concern. And then there’s also a very significant concern about adding a provision that would say that grants can be terminated at any time if they no longer serve the policy goals of the incumbent administration, which means if you get a multi-year grant, you know, to conduct a study that’s going to take 5, 6, 7 years, you have to purchase a lot of infrastructure, you have to hire a lot of people.All of those investments can end up just in the garbage can at the whim of a political appointee who decides, yeah, politically, I don’t like where this study is going. Again, just deeply contrary to the idea of developing knowledge.And to what Congress has repeatedly voted for. So it’s deeply contrary to our Republican democracy, where we don’t have one person who decides. We elect a set of representatives who pass laws, and the president has a duty to faithfully execute those laws.On OMB more generally, one thing I hear about right now is “well we don’t trust Russ Vought not to say he just doesn’t like something and hold funding back.” That’s fear is across the board with education funding, but I want to ask where you think some of the real danger spots may be over the next, 30 months or so left in the administration.Russ Vought, the OMB director, is, I think, one of the most significant figures in this administration. And he is significant because, A, he’s totally bought into the Trump approach to the world, and B, he is very, very smart and skilled with moving the bureaucracy. And so it’s that combination that is incredibly dangerous here.He knows, I mean, he was OMB director during Trump’s first term, at least toward the end, as well as working in the White House before that. And he’s been around Washington a long time. He understands the levers to pull and the most important lever that the Office of Management and Budget has is that it controls the purse strings. So the B part of OMB, Office of Management and Budget, is really, really important. No agency can spend a dollar of the money that Congress has appropriated until OMB signs something called an apportionment. And what Russ… and this is, like, incredibly wonky stuff nobody knows about, and what Russ Vought knows is that that is the crucial lever for making agencies do what you want to do. And, you know, in a well-run administration, what would happen, and an administration that cares about good government, what would happen is the apportionment power would be used as a tool to make sure the agency had a good plan for spending the money. The whole reason it’s there is so agencies don’t spend too much too quickly, but are spending prudently and spending efficiently. And so you’d have a conversation, then you’d sign off and say, okay, go ahead, spend the money or spend this quarter’s amount of money and come back to me in a couple of months for next quarter. And what Vought has done, pervasively, is use it to drill down to the most specific decisions and say, I’m not going to sign off on this unless you hammer these people and reward these other people. One of the things we’re seeing him do now, and the pattern is very clear, is the president sends up to Congress a budget every year. That budget is not legally binding. That’s the president’s proposal. Congress has the power of the purse under our Constitution. Congress adopts a budget through a law. They pass a budget resolution and then they pass appropriations laws.And those laws are binding on the president, and the president cannot refuse to spend money that Congress has passed through an appropriations law, which, of course, the president has signed. But what we’re seeing now is where Congress appropriates money that goes beyond what was in the president’s budget request. What Russ Vought is doing is just saying to the agencies, you may not spend beyond the president’s budget request. And so he’s effectively treating Congress as having adopted the budget that they explicitly refused to adopt.And so this is creating problems over and over and over again. And again, it’s harmful to effective governance, and it’s also fundamentally anti-democratic. I mean, you know, there is a long and unfortunate history that led to the legislature taking the power of the purse, first from the King of England, and then that carried over to our founding. And, you know, what we’re seeing right now is reversing that in favor of allowing one man, Donald Trump, and his one man by his side, Russ Vought, to make these decisions.Your expertise and experience are in really high demand right now. You’re all over the podcast circuit, I see you on socials commenting on things. What have you not been asked here or elsewhere? Get something off your chest that the good governance, the policy community should be thinking about moving forward.Well, I think the thing people are thinking about too little is, you know, we obviously let’s hope, are gonna have a new day at some point where we’re gonna be in a position to rebuild what’s been torn down. And everybody knows that that’s gonna be a very difficult effort.I think people are dramatically underestimating the scale of what’s going to be necessary, that it’s not just going to be, OK, that was a thing that happened those last four years. Let’s go back to normal. There is not going to be a normal anymore.In order to rebuild the government, we’re going to have to, unfortunately, spend a lot more money than we would have expected because, again, we have to rehire people. People who have left government service, often because they were forced out, are not going to come back on the same terms as they did before. You know, the reason why people serve in government jobs, in career civil service jobs, I mean, two reasons. One, they know that it’s a mission-focused job. And two, they know it has stability. And what we’ve learned in two successive Trump administrations is that we are one election away from losing both of those aspects of the public service bargain. And so we’re going to have to do something to entice people to come back.That’s gonna be expensive, that’s gonna be hard, that’s gonna require rethinking a whole lot about the way the government works. And I think people just need to get their minds around just how difficult a position we’re in. Now, I know there are a lot of people who are working very hard now to be prepared and who will be ready to jump in, but it’s going to be an enormous task.Sam Bagenstos is a law professor at the University of Michigan, former general counsel at the Office of Management and Budget and the Department of Health and Human Services under Joe Biden, and former deputy at the Department of Justice under President Obama. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit joshcowen.substack.com/subscribe