Whatever you may think of President Donald Trump’s style of governing, you must admit that it is remarkably different from that of any of his predecessors. It is natural to ask whether all previous presidents misunderstood their role, whether Mr. Trump has abused his legitimate powers, or whether the Constitution is more expansive regarding presidential authority than has hitherto been recognized.

To answer this question, we must consider the nature of the Constitution and the intentions of those who created it. It is also helpful to consider logical inferences from our governmental structure and conventions that have developed from our centuries of self-government. It must be admitted that the Constitution might have been less ambiguous regarding presidential power. It is clear, however, that Mr. Trump regularly violates both the letter and the spirit of our most fundamental law. Whereas previous chief executives may have probed the limits of executive power, Mr. Trump appears to recognize no limits.

The framers of the Constitution devised new political arrangements informed by the colonies’ experience with two previous governmental systems: colonial rule by the British Crown and government under the Articles of Confederation. The former gave ultimate power to an unaccountable and distant authority, and the latter—largely in reaction to the former—emphasized sovereignty of individual colonies, ceding few powers to a central authority, primarily those involving international and intercolonial relations. Americans definitely did not want a king, but they did need a stronger national government than had been provided by the Articles of Confederation. The 13 colonies needed to be knitted definitively into a single nation. Those twin objectives led to the adoption of the United States Constitution.

One of the thorniest issues faced by the Constitutional Convention was the power to be vested in the president. The president was not to be a king, but he needed authority to get things done, and he needed to be a symbol of national unity.

Article II of that Constitution is vague about the scope of presidential power. Section 1, which is mostly concerned with the election of the president, begins with the sentence: “The executive Power shall be vested in a President of the United States of America.” What that “executive Power” consists of is unclear. Sections 2 and 3 enumerate a small number of specific presidential powers and obligations. In the oath of office, which is specified at the end of Section 1, the incoming president simply swears to “faithfully execute the Office of President of the United States, and will to the best of my ability preserve, protect, and defend the Constitution of the United States.” There is a certain circularity to this affirmation. The Founders clearly intended Congress to be the source of laws; the president was to be responsible for carrying them out. He can suggest laws—this is acknowledged in Section 3—but cannot make them. Section 3 offers a general view of what executive power is all about. The president, it says, “shall take Care that the Laws be faithfully executed.”

President Trump and those who subscribe to the so-called unitary executive theory—those who see “executive Power” as complete presidential control over every aspect of the executive branch of government—ignore that Sections 2 and 3 of Article II convey very limited powers. It is a breathtaking inference, for example, to conclude that the president has the power to use a government department in any way he chooses from the very limited power conveyed in Section 2: [the president] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Surely, this does not justify the president’s actually running a department, eliminating it altogether, or firing its workers! The Constitution apparently assumes that the president is to exercise his executive authority through his appointment of “principal officers” and not from doing their jobs for them or eliminating their jobs.

In practice, previous presidents have been content to nominate department heads and work through them, either one-on-one or in cabinet meetings. They have avoided micromanaging executive departments, removing department heads if necessary. (Actually, the Constitution addresses selecting, but not cashiering, department heads.) Recent presidents have also conformed to conventions growing out of experience. For example, presidents other than Mr. Trump have limited contact with the Justice Department, a practice that is a response to the Watergate scandal. President Trump, on the other hand, views the Justice Depart as his Justice Department to be used as he sees fit to punish people he dislikes.

Mr. Trump has a different understanding of his role from that of previous presidents. He either has no understanding of presidential traditions and constitutional provisions or has no respect for them. Rather than relying on Congress to pass laws that embody his plans, as other presidents have done—his One Big Beautiful Bill was something of an aberration—Mr. Trump has relied on executive orders to create, modify, or destroy governmental institutions, so as to make them consistent with his personal policy objectives.

Executive orders are not described in the Constitution, although presidents in both parties have used (and misused) them. When properly used, executive orders clarify how laws are to be understood. They should be similar in nature to regulations promulgated by cabinet departments. In the modern world after all. Congress cannot specify all the technical details of laws involving complex or specialized matters, so some executive-level interpretation is often required.

President Trump, however, has used executive orders to make the country—they are not even limited in scope to the government itself—conform to his personal preferences. This is not the proper role of a president of the United States. He argues that he is doing what the people elected him to do, but the people did not—could not—elect him to usurp the legislative function that belongs to Congress. The people have every right to expect that their congressional representatives, not the president, determine what the laws of the nation are. Yet Mr. Trump regularly issues orders to undo decisions of Congress or to implement policies on which Congress has not spoken. He seems to have no interest in faithfully executing laws fashioned by Congress, and Republicans, who have majorities in both houses of Congress, have tolerated and even celebrated his attitude. President Trump, if he knew history and the French language, would be inclined to say, as Louis XIV is reputed to have said, “L’État, c’est moi.” He seems to believe that he is, indeed, the state.

One might have hoped that Congress would have guarded its powers more jealously. The founders viewed the Congress and the presidency, along with the judiciary, as independent power centers that would check and balance one another. They apparently did not anticipate that one party—they seemed not to have anticipated the rise of our two-party system at all—could capture all three branches of government and act in concert with one another.

Mr. Trump has effectively invented a new paradigm of governing:

1. He issues an executive order, often likely or patently illegal.
2. The administration is sued by civil society groups, who win their case in the lower courts.
3. The administration appeals that decision.
4. The Supreme Court, without deciding the issue immediately, allows the administration to do as it wishes, pending a final adjudication.

One hopes that, in many cases, the Supreme Court will eventually rule Mr. Trump’s actions illegal or unconstitutional. But, given the composition of the court—it has a six-person supermajority of Republican-appointed justices—this seems unlikely in most cases. Whether the court constrains the president or not, Mr. Trump’s strategy will have already done irreversible damage as litigation proceeds slowly to its final resolution. The Supreme Court seems indifferent to any ongoing damage being done as the wheels of justice slowly grind toward that ultimate resolution.

The undue speed with which this administration has acted is very much part of the Trump strategy. Just as the judicial system acts slowly, so does the legislative system under normal circumstances. Passing legislation takes time, which gives many voices a chance to be heard, including those of the citizenry at large. The Trump strategy short circuits this process that encourages a certain amount of give-and-take that results in well-considered legislation. That Congress appears to be comatose is giving an out-of-control executive a free hand to do whatever it wants. The normally slow legislative process now is largely halted.

One can hope that the 2026 midterm elections will result in a Congress willing to assert its prerogatives and restrain what has become an out-of-control presidency. Mr. Trump has indeed changed the way the government operates. Moreover, he is doing all in his power to skew those elections to favor GOP candidates. It is unclear whether Democratic victories in 2026 will be sufficient to halt the damage being done to the nation by Mr. Trump, given that the Supreme Court will likely retain its willingness to allow the changes the president has made and is making. The fate of the Republic and American freedom hangs in the balance. The ultimate outcome is uncertain.
 

— LED, 12/10/2025

 
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