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executive power
What Would the Founders Make of Trump’s Authoritarianism?
The Founders imagined the president as an administrator, not a policymaker, and definitely not an imperial unitary executive.
Mar 26, 2025
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.
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Trump’s Rule by Fiat Is a Grotesque Continuation, Not an Aberration
The playbook he uses was written by both parties over decades of eroding democratic norms, consolidating executive power, and circumventing meaningful checks on authority.
Mar 25, 2025
U.S. President Donald Trump’s latest defiance of the courts—this time refusing to follow an appellate judge’s order to halt migrant deportations—has triggered another round of liberal outrage. Critics are calling it an authoritarian move, a blatant assault on the rule of law, and a warning sign that American democracy is on its last legs.
But if this is the end of democracy, it’s been ending for a long time. And not just at Trump’s hands.
The central truth we keep missing—especially on the left—is that Trump is not an aberration. He’s a grotesque continuation. The playbook he uses was written by both parties over decades of eroding democratic norms, consolidating executive power, and circumventing meaningful checks on authority. Trump didn’t invent the impulse to rule by fiat; he just brings it out into the open.
If we want to stop the next Trump, or the next expansion of executive lawlessness, we can’t keep pretending he came out of nowhere.
Consider the legal justification Trump has floated for ignoring the courts: The United States is “at war.” Therefore, he claims, wartime powers apply—even domestically, even over immigration courts. To many, this sounds like a dystopian twist. But it’s eerily familiar. Because the same logic has been used, repeatedly, by both Republican and Democratic administrations since 9/11.
After the attacks on the Twin Towers, Congress passed the Authorization for Use of Military Force (AUMF), which gave the executive branch sweeping powers to pursue terrorism around the world. That one document has served as the legal scaffolding for 20-plus years of undeclared wars and covert operations in Yemen, Somalia, Iraq, Syria, Pakistan, and elsewhere.
No further congressional approval was needed. The public never had a say. The war powers clause of the Constitution became symbolic—if not obsolete.
Former President Barack Obama inherited that framework and expanded it. His administration developed the now-infamous drone kill list, justified targeted assassinations (including of U.S. citizens), and defended the government’s right to indefinitely detain terrorism suspects without trial. Obama didn’t officially suspend habeas corpus, but in practice, he upheld a system that made the writ meaningless for hundreds of detainees held at Bagram and Guantánamo. The position of his Department of Justice was clear: The executive has the authority to detain and kill, beyond judicial oversight, because we are at war.
This is the true bipartisan legacy that paved the way for Trump. The removal of checks and balances didn’t happen overnight. It was built incrementally, piece by piece, under the banner of national security—with the cooperation and silence of the same liberal establishment that now acts scandalized by Trump’s every defiance.
It’s worth asking: Why wasn’t there more pearl clutching when the executive branch was unilaterally deciding who lived or died abroad, without congressional debate or judicial process? Why didn’t more alarm bells ring when Democrats joined Republicans in handing over war-making powers and then refused to take them back? Why was it acceptable to rule by emergency decree when the emergency was foreign—but suddenly unacceptable when the same logic is turned inward?
Trump is now openly talking about “eradicating” the Houthis in Yemen—an aggressive military escalation that directly contradicts the MAGA-era promise of no new foreign wars. So much for populist anti-interventionism. In lockstep with Benjamin Netanyahu’s Israel, Trump appears eager to resume the forever war posture. And once again, no one’s talking about congressional approval.
This is the cycle we’re caught in. Trump exposes the tools others helped create. He strips them of their moral veneer, revealing the ugly core. And rather than confront the system itself, liberals point at Trump as a singular villain—as if everything was working just fine before he came along.
The truth is harder to face: If we want to stop the next Trump, or the next expansion of executive lawlessness, we can’t keep pretending he came out of nowhere. We need to reckon with the fact that our democracy has been undermined from within—by both parties, for years. We need to challenge not just the man, but the machine.
And that’s something the Democratic Party, in its current corporate and security-state-aligned form, seems unwilling—or unable—to do. It would require renouncing its own legacy, from the Clinton-era crime bill to Obama-era surveillance and drone wars. It would require fundamentally rethinking how power is distributed in this country, and how easily it can be abused.
Until that happens, we shouldn’t be surprised when the next Trump defies the next court order. We shouldn’t act shocked when the language of war is used to suspend due process. We shouldn’t cling to the fantasy that our institutions will save us, when those institutions have been hollowed out by decades of bipartisan compromise.
Trump didn’t break democracy. He just took the mask off.
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A Right-Wing Supreme Court Won't Save Us From This Right-Wing President
Today especially, remember that we celebrate President's Day—not Dictator's Day—for a reason.
Feb 17, 2025
It is well to remind ourselves that today is President’s Day, not Dictator’s Day.
Of all the things the framers of the Constitution worried about, their biggest worry was that a president would become as powerful as a king. Which is why they created Congress and the judiciary — to check and constrain him.
Fast forward to the first Gilded Age of the late nineteenth century, when inequalities of income and wealth had become extreme that the so-called “Robber Barons” of the era (think Elon Musk, Jeff Bezos, and Mark Zuckerberg) controlled the economy, and corruption was rampant. (I say “first” Gilded Age because we are now clearly in the second.)
Reformers of that era created an income tax to try to limit the Robber Barons’ incomes, limits on corporate campaign expenditures to limit their political reach, and independent regulatory agencies to limit their power. The Federal Trade Commission, for example, was established as an independent agency in 1914, to take on corporate monopolies and fraud.
Fast forward again to today. There are by now 19 independent regulatory agencies, including the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the National Labor Relations Board, the Federal Deposit Insurance Corporation, the Consumer Financial Protection Bureau, and the Office of Special Counsel.
These independent agencies, staffed with experts, have become a major countervailing power to the political clout of large corporations.
But I fear that the Supreme Court is about to end their independence.
On Sunday, White House lawyers asked the justices to allow Trump to fire the head of an independent watchdog agency. It’s the first case to reach the Supreme Court arising from the blizzard of actions taken by Trump in the early weeks of the new administration.
The White House’s emergency application asks the Supreme Court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, head of the Office of Special Counsel.
The Office of Special Counsel — a little-known but important independent agency — enforces federal whistleblower laws, which protect whistleblowers from political retribution, and the Hatch Act, which prohibits federal employees from engaging in most political activity.
In the 1978 law that established the Office of Special Counsel, Congress gave the Counsel a five-year term and provided that he or she could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
But Trump’s one-sentence email to Dellinger on Feb. 7 gave no reasons for firing him, effective immediately.
Dellinger sued. He called his removal illegal and argued that nothing about his performance could possibly meet the standard Congress laid out for dismissing a special counsel:
“Since my arrival at OSC last year, I could not be more proud of all we have accomplished. The agency’s work has earned praise from advocates for whistleblowers, veterans, and others. The effort to remove me has no factual nor legal basis — none — which means it is illegal.”
Since February 7, Dellinger has continued to police the government against Hatch Act and whistle-blower violations — even when they have involved federal workers who allegedly discriminated against Trump. (In a complaint filed last Tuesday, Dellinger alleged that, during a hurricane response in October, an aid supervisor for the Federal Emergency Management Agency illegally instructed FEMA workers not to visit homes with Trump signs.)
Last Monday night, Judge Amy Berman Jackson of the Federal District Court in Washington issued a temporary restraining order blocking Trump from firing Dellinger.
Judge Jackson wrote that the 1978 law “expresses Congress’s clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change,” adding that the government’s “only response to this inarguable reading of the text is that the statute is unconstitutional.”
On Saturday, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s emergency motion for a stay of Judge Jackson’s ruling. The unsigned majority opinion said the government’s motion was premature.
“The question here is not whether the president is entitled to prompt review of his important constitutional arguments. Of course he is. The issue before us is whether his mere claim of extraordinary harm justifies this court’s immediate review, which would essentially remove the legal issues from the district court’s ambit before its proceedings have concluded.”
In its Sunday filing before the Supreme Court, the White House said the Supreme Court “should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will.” Translated: Congress can not limit the president’s power to fire heads of independent agencies.
Make no mistake. This is a fundamental challenge to the basic idea — part of the fabric of our government for well over a century — that Congress has the power to create independent agencies.
Trump’s emergency application took direct aim at a precedent from 1935 in which the Supreme Court unanimously ruled that Congress can shield independent agencies from politics.
That case, Humphrey’s Executor v. United States, concerned a federal law that protected commissioners of the Federal Trade Commission, saying they could be removed only for “inefficiency, neglect of duty or malfeasance in office” — the same language that Congress used decades later to protect the Special Counsel.
Franklin D. Roosevelt nonetheless fired a commissioner, William Humphrey, arguing only that Humphrey’s actions were not aligned with the administration’s policy goals. The Supreme Court held that the firing was unlawful and the law establishing the independence of the Federal Trade Commission was constitutional.
Fast forward again. The Roberts Supreme Court doesn’t like independent regulatory agencies. Most of the current justices subscribe to what’s called the “unitary executive” theory, a bonkers notion that the framers intended for a president to have total control over every aspect of the executive branch.
In 2020, the Roberts Supreme Court laid the groundwork for reversing Humphrey’s Executor in a case involving the Consumer Financial Protection Bureau. The law that created the Bureau — again, using language identical to that at issue in Humphrey’s Executor and in Dellinger’s case — said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
In a 5-to-4 decision, the Supreme Court struck down that provision, ruling that it violated the separation of powers and that the president could remove the bureau’s director for any reason. Roberts, writing for the majority, said the presidency requires an “energetic executive.” He continued:
“In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
Two justices — Clarence Thomas and Neil M. Gorsuch — would have pulled the plug on independent agencies then and there. Thomas wrote:
“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. With today’s decision, the court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent.”
Justice Elena Kagan, writing for what was then the court’s four liberals, dissented, saying the Constitution did not address the scope of the president’s power to fire subordinates. Congress should therefore be free, she said, to grant agencies “a measure of independence from political pressure.”
That 2020 decision by the majority of the Supreme Court anticipated the Supreme Court’s decision last July that granted Trump, then a private citizen, immunity from prosecution for any “official” conduct during his first term.
So what now? I’m afraid the Trump White House and the Supreme Court have teed up the Dellinger case to mark the end of Humphries Executor — and therefore the practical end of independent agencies. They may carve out the Federal Reserve on some pretext, but they are bent on centralizing presidential power.
I wish I could be more hopeful, but I honestly don’t see any other decision emerging from this high court.
Celebrate President’s Day today, not Dictator’s Day. And don’t, whatever you do, give up hope. This is all part of democracy’s stress test. I guarantee that eventually democracy will come out stronger for it.
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