The U.S. Constitution is very specific about the powers of Congress and very vague about the powers of the president and the judiciary. While the authors of the nation’s founding documents were explicit that power had to be divided between three coequal branches, the legislative, executive, and judicial, they did not anticipate the authoritarianism of President Donald Trump, the cowardice of congressional representatives beholden to a populist demagogue for endorsements and campaign funds, nor the reactionary ideology of a right-wing Supreme Court. It is not fair to blame the founders for events 250 into the future, with the United States in the midst of a major constitutional crisis.
In 1787, Benjamin Franklin placed the responsibility for upholding the Constitution on future generations when he warned that the new government is “A republic, if you can keep it.” Abraham Lincoln recognized the difficulty of maintaining a country based on this one’s founding principles in his Gettysburg Address over 150 years ago when he told the assembled, “We are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”
The Constitution assigns the president an undefined executive power with some very specific tasks. The president represents the country in talks with other countries and can negotiate treaties, but the treaties must be approved by the Senate; the president can veto or sign bills approved by both houses of Congress, and then they are responsible for enforcing the laws; and the president acts as Commander-in-Chief of the military during a war, nominates judges and ambassadors pending Senate approval, and grants pardons.
The Trump claim for a unitary executive and virtually unlimited executive power undermines everything they were trying to create.
There is no mention in the Constitution of political parties or of Cabinet members. Departments and Cabinet positions were created by Congress later to make the government run more smoothly. Executive orders are not mentioned in the Constitution either, and they do not carry the power of law, but every president since George Washington has issued executive orders as instructions to heads of the different federal departments about how to carry out their duties. The Constitution does not give the president the authority to issue executive orders that overturn or ignore laws passed by Congress or decisions made by the Supreme Court.
Since George Washington’s presidency, different presidents have interpreted their powers and responsibilities as chief executive in different ways. President Trump embraces the modern unitary executive theory, which claims that the president has sole authority over the executive branch of the government. According to this theory presidential power can only be restrained if a president is impeached by the House of Representatives and convicted by the Senate, something that it so difficult that it has never happened in United States history.
Without restraints, Trump argues he can summarily fire without cause any employee of the executive branch including Cabinet members approved by the Senate, he can decide not to spend money allocated by Congress, and he can ignore laws he does not agree with even though they were passed by Congress and signed by a previous president. The right-wing majority on the Supreme Court seems inclined to support Trump’s view of executive power. In 2020, during Trump’s first presidency, the Supreme Court narrowly ruled 5-4 that “the entire ‘executive power’ belongs to the president alone,” although it never actually explained what executive power means.
Three of the nation’s founders, Thomas Jefferson, James Madison, and Alexander Hamilton, addressed the allocation of power in the new government and explained why power had to be divided. Thomas Jefferson was not at the Constitutional Convention, but he did address the separation of powers in his 1784 Notes on the State of Virginia, with ideas that helped shape the Constitution. While Jefferson was more concerned with the legislative branch assuming too much power, he was very clear that “all the powers of government, legislative, executive, and judiciary, result to the legislative body,” but “concentrating these in the same hands is precisely the definition of despotic government... An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Jefferson warned, “The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”
James Madison, who was the secretary at the Constitutional Convention, explained how separation of powers should work in essays he wrote during the debate in New York State over ratification of the Constitution. In Federalist Papers 47-50, he explained the importance of separating powers and how the principle was applied in the Constitution. He also addressed concerns about how the system would work. An underlying principle of the new government was that “ambition must be made to counteract ambition,” balancing power among the branches of government to protect individual rights and prevent tyranny. Madison famously wrote in Federalist Paper 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
Alexander Hamilton, an active participant in the Constitutional Convention, wrote in favor of a strong executive and is used to justify the unitary executive theory; however, Hamilton was not discussing unlimited executive authority but was disputing the idea of a presidential council. Hamilton explained the specific powers assigned to the president and did not anticipate claims that a president would be virtually unchallengeable. According to Hamilton, “The only remaining powers of the executive are comprehended in giving information to Congress of the State of the Union; in recommending to their consideration such measures as he shall judge expedient”; and “faithfully executing the laws.” He was very careful to distinguish between the president as an elected executive subject to impeachment and the power of a hereditary monarch.
I think the Founders imagined the president as an administrator, not a policymaker, and definitely not an imperial unitary executive. Their bigger fear was that congressional majorities would attempt to usurp the executive’s responsibility to administer laws in order to benefit special interest groups. For the same reason they wanted an independent judiciary to prevent the politically motivated administration of justice. The Trump claim for a unitary executive and virtually unlimited executive power undermines everything they were trying to create.
