If ever one needed evidence of the necessity for limits on executive power, President Donald Trump has now provided it. The first three weeks of his second term are Exhibit A in the case for checks and balances, separation of powers, and constrained presidential authority. He has sought to effectively shutter an agency established by Congress, USAID. He tried to freeze all federal funding, in contravention both of statutes requiring that the funds be spent and of countless contractual obligations. In a brazen effort to remake the federal government in his image, he offered without any authorization to buy out federal employees if they voluntarily resigned. He has attempted to end birthright citizenship, a right expressly guaranteed by the Fourteenth Amendment. He ordered the interim US Attorney for the District of Columbia to fire dozens of lawyers who prosecuted the January 6 insurrectionists, and threatened to fire the FBI agents involved, even though they were only doing their jobs. His Attorney General has directed the Justice Department to criminally investigate businesses for DEI programs—even though Congress has not made offering such programs a crime under any circumstances. And he dismissed seventeen inspectors general, the watchdogs for abuse and fraud within the executive branch, without providing the notice and reasons required by statute. The list goes on.
The targets of these and other measures have not been shy about pushing back, filing legal challenges in the courts. (The online publication Just Security keeps an excellent tracker of this litigation.) Thus far, to put it mildly, the president is not faring well. Courts have blocked him from halting federal funding, closing USAID, removing birthright citizenship, giving Elon Musk’s Department of Government Efficiency access to sensitive information on millions of people held by the Treasury Department, and imposing a February 6 deadline for federal employees to take his illegal buyout. Two courts have blocked his cruel and unfounded directive to transfer transgender women to men’s prisons, even where prison authorities have determined that they should be housed in women’s prisons for their safety. (To be clear, much damage remains, as many of the executive orders are in place and probably not illegal—just heartless, counterproductive, and stupid.) The judges who have blocked his actions were appointed by Republicans and Democrats, even in one case by Trump himself. The courts, in other words, are for the most part doing their job—checking unprecedented abuses of presidential power.
The ultimate fate of many if not most of these initiatives will likely be determined by the Supreme Court. That is worrying, because for many years this Supreme Court—deeply distrustful of the “administrative state” and of congressional efforts to rein in presidential authority—has undertaken a campaign to grant the president centralized, consolidated power. In the name of the “unitary executive,” a theory that the president must have unilateral control over the executive branch, the Court has repeatedly struck down limits on the president’s power to remove federal officials. Last term it went still further, granting President Trump himself unprecedented immunity even for criminal conduct, reasoning that subjecting a president to the criminal accountability everyone else faces—even after he has left office—could impermissibly interfere with his unilateral powers, such as the pardon authority, and more generally unduly hinder his freedom and willingness to carry out his duties.1
It is hard to say how much that decision informs the president’s current overreach. But in any case this time around Trump is more than unhindered; he is unhinged. Many have wondered whether Trump will go so far as to simply defy the Supreme Court if it rules against him. Over the weekend, Vice President J.D. Vance poured gasoline on that speculation by tweeting that “judges aren’t allowed to control the executive’s legitimate power.” A lot of work is being done in that sentence by the word “legitimate,” but in our system it is the Court, not the executive, that determines whether the executive’s actions are legitimate, as in legal. If Trump did choose to disobey the Court’s justices on the grounds that they “aren’t allowed” to regulate his executive actions, it would cross a line that no president has ever crossed and likely ignite an entirely justified political firestorm.
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Periods like this should be sobering even to adherents of robust executive authority. As a historical matter, abuse often breeds renewed respect for restraint. The excesses of big business during the Industrial Revolution, for example, led to widespread reforms protecting workers and consumers in the progressive era and the New Deal. At first the Supreme Court struck down many of those reforms as a violation of business owners’ right to contract. But industrialists’ exploitation of workers and consumers ultimately prompted one of the most consequential shifts in constitutional jurisprudence: the Court reversed course and granted the political branches broad discretion to regulate business in the public interest.
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In the 1970s Watergate, Vietnam, and COINTELPRO—the federal government’s illegal spying campaign against civil rights and other activists—likewise ushered in important limits on unchecked power. The Court issued landmark decisions rejecting President Nixon’s assertion that he had “executive privilege” to hide Oval Office tapes of his own wrongdoing and his attempt to block publication of the Pentagon Papers on asserted national security grounds. Meanwhile, Congress enacted perhaps the most sweeping reforms in American history designed to constrain executive power. The laws limited the president’s warmaking and emergency powers, imposed new limits on domestic spying, and established and empowered inspector general offices within multiple executive agencies.
President Trump’s ill-conceived effort to “flood the zone,” legality be damned, could prompt similar correctives. Not from Congress—at least not yet—because the Republican Party is too terrified to cross their leader (although that could change if his approval ratings plummet). But thus far real resistance to Trump’s legally questionable executive orders has come from public sector unions, nonprofit organizations like the ACLU and Democracy Forward, major press outlets, state attorney generals—and the federal courts.
How will the Supreme Court react? For those who profess to be “originalists,” there is abundant historical support for reining in the president. The American Revolution was sparked by King George III’s abuses of power, including imposing taxes without representation, substituting royal appointments for representative colonial governments, blocking trade, authorizing “general warrants,” quartering troops in American homes, and denying fair trials. The Constitution was drafted with those experiences very much in mind. The Framers created a divided national government, independent judges, and a federalist system of state authority to constrain federal power in general and presidential power in particular.
The Constitution’s text makes this clear. Article I, governing Congress, vests that body with a long list of powers, and the Tenth Amendment underscores that any powers not named are reserved not to the president but to the states or the people. By contrast Article II, devoted to the executive branch, gives the president only a handful of authorities: the power to pardon, to serve as commander-in-chief in wars declared by Congress, to make appointments and negotiate treaties subject to Senate approval, and to “execute” congressionally enacted laws. He has no power to make law as such, only to carry out what Congress directs. As the Supreme Court explained with remarkable prescience in 1866, in a decision invalidating Abraham Lincoln’s effort to try a civilian in military court, these restraints are necessary because “wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.”
And yet as Arthur Schlesinger showed in The Imperial Presidency (1973), over time presidents expanded their authority—often by seizing initiative when Congress or the courts were unwilling or unable to act. The hydraulics of the federal government’s structure favor the president, despite the framers’ intentions. It is a lot easier to take action in a branch headed by a single person than in a body of over five hundred members, each of whom has a vote. The Constitution, for example, provides that only Congress can declare war. But the last declared war was World War II, and the United States has hardly been at peace ever since; instead, presidents have regularly initiated military hostilities without legislative approval.
As the nation’s close partisan divide has rendered Congress increasingly dysfunctional, presidents of both parties have turned to executive orders as much to “make law” as to “execute” the laws Congress has made. President Trump’s first administration, for example, succeeded in enacting few statutes, even when Republicans controlled both houses of Congress. But Trump issued multiple orders restricting immigration, contrary to federal laws, and when Congress refused to appropriate the funds he requested for his border wall, he unilaterally diverted funds dedicated to other purposes.
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The Supreme Court under Chief Justice John Roberts has enabled the consolidation of presidential power. It has, for example, advanced an unjustifiably expansive notion of the president’s “removal power”—his authority to fire his underlings. The Constitution says nothing about the president’s authority in this regard, but the Court has treated removal power as an implied aspect of executive authority and grown increasingly hostile toward any efforts to limit it.
In the interest of keeping certain agencies, such as the Federal Reserve Board, protected from politicization, Congress has occasionally passed laws providing that the president may remove certain officials only for abuse or neglect—not simply because he disagrees with their policy decisions. The Supreme Court upheld such a limit in 1935 with respect to the Federal Trade Commission, and again in 1988 in a challenge to the statute that created an “independent counsel” to investigate and prosecute cases against high-level executive officials, where the president has an inherent conflict of interest. The 1935 decision was unanimous; in 1988, Chief Justice William Rehnquist wrote for the majority, with only Justice Antonin Scalia dissenting. The Roberts Court has not formally reversed those earlier decisions, but it has repeatedly struck limits on removing federal officials, including the head of the Consumer Financial Protection Board; members of the Public Company Accounting Oversight Board, an entity designed to oversee the accounting industry; and hundreds of administrative patent judges.
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In other cases, however, the Roberts Court has sought to restrain executive power. Its “major questions doctrine” has barred presidents from undertaking significant new initiatives without explicit authorization from Congress, and last term the justices overturned a longstanding rule that required courts to defer to executive agencies’ “reasonable” interpretations of ambiguous statutes the agencies enforce.
So far these latter decisions have constrained only Democratic presidents. Soon we will see not only whether the Court is willing to apply them to Trump but also whether Trump’s current abuses will shake its confidence in largely unchecked presidential authority. In his first term Trump had the worst won-lost ratio in the Supreme Court since FDR. His even more blatantly lawless conduct this time around should be grounds for him to eclipse that record. No one in this nation’s history since George III has provided a better object lesson in the risks of unlimited executive power. We can both demand and hope that the Court agrees.
