Trump Proposals on Executive Power Uphold the Constitution
Many presidents of different parties have faced the accusation that they acted like monarchs or dictators, and President Trump is no exception. A recent New York Times article sounds the alarm about presidential power in a potential Trump second term. It details proposals by the former president and affiliated persons and groups that seek significant reform to expand the Chief Executive’s authority over agencies, funds, and civil employees. The article attacks these changes as possibly destroying checks and balances within the government and, thus, any accountability for the president.
But they do no such thing. The general aim of these proposals is sound, and critics sell short the Constitutional argument for many such changes.
The article paints the planned moves as meant to flatter Trump’s ego and to weaponize law enforcement for partisan, namely right-leaning, ends.
The piece’s authors get help in making both these accusations. The 45th president often speaks of his view of presidential power in self-serving and unlimited ways. Moreover, at least one former aide quoted in the article frames the proposed changes entirely in terms of partisanship, saying the reforms will make a fundamentally liberal structure into a more conservative one.
But the theory behind this plan, which the authors call “a maximalist version of the so-called unitary executive theory,” merely follows the Constitution’s textual and logical train of thought.
The text of the Constitution distributes national power to three distinct institutions based on three different functions: lawmaking, law enforcement, and adjudication based on law. While Article I gives Congress the legislative power and Article III bestows the judicial power to the courts, Article II vests “the executive power” in the president. Congress should control lawmaking; the courts, the application of the law to legal disputes. In the same fashion, the president should control the executive of laws.
Control over those who enforce the law is central to exercising this executive power. The “unitary executive theory” merely seeks to adhere to that point better. Too many government officials enforce laws outside the president’s control or those who answer to the president. They do so through agencies made independent of the chief executive and civil service protections that severely limit the ability of elected officials to fire bureaucrats. Restoring greater presidential control would not subvert the Constitution. Rather, it would uphold possibly the president’s most central Article II duty, to “take Care that the Laws be faithfully executed.”
That President Trump and affiliated groups wish to give the president more control over law enforcement is neither novel nor frightening. The theory of executive power outlined above goes back to arguments made by Alexander Hamilton and James Madison in the early years of the Republic. Even F.D.R., as the article partly admits, sought similar executive control over the burgeoning apparatus arising under the New Deal.
This longstanding view assumes that all national executive power resides in the president. Still, as the article claims, such a view does not reject “the idea that the government is composed of three separate branches with overlapping powers to check and balance each other.” A more faithful adherence to Article II retains plenty of limits on the president. Executive power only exists where legislative power has bestowed authority to act. The president, then, still must trace any legitimate action to the enforcement of Constitutional or statutory law.
If Congress disagrees with his interpretation of the laws, they can pass new ones clarifying their intent. They can cut funding for particular matters, or the Senate can refuse to confirm nominees. Finally, as Congress did twice with President Trump, they can bring articles of impeachment and seek removal from office. Moreover, judges can assess executive actions and refuse to enforce them if they violate the law, as they recently did with the Biden Administration’s student loan plan and various policies under President Trump.
Ultimate accountability remains, of course, in an appeal to the people. A more empowered president can also be held more responsible since he cannot legitimately pass the buck for unpopular actions taken by agencies. Hamilton made that exact claim as early as Federalist 70 in defending the presidency against claims it would be too powerful.
Certainly, particular proposals fall outside executive power as understood by Article II. For example, the impoundment of funds tried by President Nixon, whereby he refused to spend money appropriated by Congress, might violate legitimate and limiting Congressional prescriptions for faithfully enforcing the laws. Whether a president goes beyond executive power here depends on the extent to which Congress gives a president discretion in when and how to disperse money. We should weigh the legitimacy of these proposals in light of their particulars.
Regardless, the general aim of these proposals rests on a sound theory of the Constitution and the president’s powers within it. It will not privilege conservative or liberal policies but merely return more enforcement decisions to politically responsible executive officers. The real question should not be whether a president should possess many of these powers but who best can exercise them. That choice the American people will make in 2024.
Adam Carrington is an associate professor of politics at Hillsdale College.
