"Why doesn't somebody stop this?"

A little background on the Constitution and executive power

In just over a month, the Trump administration has established a dynamic in which they take unpopular actions driven by the executive branch, then pull back selectively in response to public outcry, court orders (maybe? sometimes?), or other forms of organized opposition. But they keep doing it, with actions that corrode the Constitution from multiple angles: banning media outlets from press conferences; engaging in staggering corruption; making what amount to serious policy decisions through DOGE, a rogue body not authorized by Congress. This leaves the Constitutional order badly weakened, like a car that’s still running, but marred by spreading streaks of rust that map out its eventual demise. There’s been a lot of debate about what to call this: a coup? A constitutional crisis? And I keep fielding questions – many from students – about how all this can possibly be Constitutional. I can’t answer these questions definitively, but I can offer a bit of context about how the executive branch got to be in a position to do this much Constitutional damage.

The Constitution is not self-executing: why we have an executive branch at all

There are basically two things to know about the presidency at the founding: the Constitution isn’t self-executing. Someone needs to make sure that laws are carried out. Under the Articles of Confederation, there was no national executive, so the execution of the laws was up to the states. The framers of the Constitution saw this arrangement as flawed for a variety of reasons and thus created a national executive charged with both executing laws and protecting the Constitution and Union in general, as the oath requires. Alexander Hamilton laid out the justification for a strong executive in a Constitutional republic in Federalist 70. I encourage everyone to read this, especially the discussion of steady administration and accountability.

But this also brings us to the second thing about the founding and the presidency: there were a lot of ideas about what the presidency should be and what its obligations and powers meant. There were visions of a kind of Constitutional caretaker who might serve a lengthy term in office and enjoy a lot of independence from the push and pull of politics; other Constitutional thinkers had more concerns about checking presidential power and establishing forms of accountability. The text of the Constitution reflects these ambiguities: it vests an unspecified executive power in a president of the United States and requires the laws be faithfully executed – potentially a mere administrative task, carrying out the laws passed by Congress. But the larger responsibility of protecting and defending the Constitution, paired with the “vesting clause,” suggest a more expansive role. And these phrases have been the basis for a lot of presidential power: for example. the suspension of habeas corpus during the Civil War, and the expansion of presidential power to guide foreign policy.

So that gives us the Constitutional basis: the Constitution charges the president with executing the laws under the Constitution and protecting the Constitution, making the business of dealing with truly unconstitutional executive actions… tricky. This, of course, is where other branches could step in. The point of thinking about the founding and Constitutional text is that they weren’t exactly designed for this. But what’s happened since is also important.

The growth of presidential power

Many of our readers are probably familiar with the idea that executive power grew considerably over the course of the twentieth century, especially with the development of the administrative state under FDR and the national defense state (which began to really flourish under Harry Truman). It’s true that as national policy expanded and began to cover more things, from some basic economic structures to an extended national security state, the executive branch grew in both scope and influence. But it’s worth looking back a bit before that. As the industrial revolution brought an increasingly nationalized economy, the need for national policy interventions grew. Congress was criticized for being parochial and slow, driven by local political interests rather than a broader national vision. The very condensed version of this story is that presidents in this era – Theodore Roosevelt and Woodrow Wilson in particular, leading up to the FDR era – laid out a vision in which the presidency was the solution to the governing problems of the day. Those problems included a set of very decentralized and localized institutions not well-suited to an increasingly nationalized environment. Roosevelt thought a more active government would involve a president who had a close direct relationship with the people; Wilson shared this and also sought a more prime ministerial role for the president, leading a national party with a cohesive policy platform. In other words, presidents sought to expand their power, and these efforts were tied to reform movements and many policies we’d associate today with a leftward outlook. And the power of the presidency was built up to address some of the problems we’re still seeing with US institutions – not structured for efficient collective action or well-adapted to nationalized politics.

As the twentieth century drew to a close, criticisms of the “imperial presidency” became more common. The Vietnam War and Watergate cast doubt on presidential war powers and the capacity for executive secrecy. Congress passed a lot of reforms, including the War Powers Resolution, which may or may not have given presidents more power to initiate US involvement in foreign conflicts. They also passed campaign finance reforms and sunshine laws. None of this really made the presidency less powerful, but it did represent the efforts of an institution that saw a role for itself as a coequal branch.

How did this change? What else was going on in the late twentieth century? The point I wanted to raise in this post is that our system is not well-positioned to check unconstitutional presidential power because it was not designed that way, and has evolved to rely even more on the presidency to resolve different governance problems. In part two, later this week, I’ll address what’s happened in other institutions.