Perhaps the most significant constraint on the new Administration is the Senate’s blue slip custom. The President is finding it impossible to fill U.S. Attorney positions in blue states, more or less. This is creating two issues. One is that many acting US Attorneys may not be lawfully holding their office. The other is that many of these acting USAs are incompetent. In practice, there is not a unitary executive for what Justice Scalia called the core executive power–criminal law enforcement. Appointing a USA acceptable to blue state Senators would require picking people who won’t always do the President’s bidding.
Many Administrations have foundered on the Senate. (See Woodrow Wilson.) And this is not the only source of norms that are alive and well, as I’ll discuss in a subsequent post about my home state of Indiana.
UPDATE: I didn’t mention the filibuster, though of course that’s also a Senate norm with bite that is still kicking and screaming.