President Trump has justifiable criticism for expanding executive power to dangerous levels. In his second term and after only 100 days in office, he pardoned January 6 insurrectionists who attacked the U.S. Capitol in service of his multi-pronged self-coup illegally to stay in office after a 2020 election he falsely claimed was stolen.
Trump is now disappearing people who are legitimately in the country but who dissent from his views. He has issued more than 100 executive orders, ruling by fiat to, for example, unconstitutionally slash or withhold funding that had been appropriated by Congress, illegally shut down agencies of the government that were created by the same legislative body, and attempt to end birthright citizenship, which has been written into the Constitution since the mid-1800s.
Trump is using the federal government to investigate, harass, fire, endanger and directly harm individuals and institutions (for example, universities and law firms) that he just doesn’t like. Finally, Trump has again refused to put his assets into a blind trust, which most recent presidents have done — so that his sons can gallop around the world to make sweetheart business deals for him to cash in on his presidency — with countries that want to win points with the powerful president of the American superpower.
In short, Trump appears to have sought to win the presidency for its own sake, to expand the office’s power as an ultimate goal (like George W. Bush), and use that power to exact revenge for perceived slights and to extract billions from U.S. taxpayers and eager foreign entities.
Blaming Trump exclusively for creating a rogue and authoritarian presidency is like focusing on a buzzer-beating winning shot in a basketball game. Asking who scored all the points in the game to allow the winning team to get close enough to win by sinking that three-pointer may be less glamorous, but it is important in recording an accurate account of the game. The same needs to be done to see the origins of this rogue presidency.
The framers of the Constitution in 1787 were concerned not with an efficient government, but with avoiding tyranny from a monarch-like chief executive or from a purely democratic mob that might elect a demagogue autocrat.
Rather than creating what the conventional wisdom calls a “separation of powers,” they created vertically (federal and state governments operating on the same turf) and horizontally (the two congressional houses, the presidency, and the judiciary) separate institutions with shared powers.
The unitary theory of the executive, championed by Republican presidents and their underlings since Ronald Reagan, is ahistorical and not what the framers intended. Article I of the Constitution established a Congress, which was designed to be the first branch among equals and the creator of the general rules (laws) under which a constitutional republic (not a democracy) would operate. Article II established the presidency, which had the narrow responsibility of carrying out and enforcing the laws passed by Congress. In Article III, the federal judiciary was designed to interpret Congress’s laws when disputes arose and soon thereafter assumed the role of deciding whether those laws were constitutional.
The 10th Amendment to the Constitution dictates that powers not explicitly delegated to the federal government, nor prohibited by it to the states, are reserved to the states or the people. Thus, the framers originally intended that the Congress and the states would be the dominant entities in the system, but over the next 234 years, the president and judiciary began to usurp the powers of Congress and the states, which those entities often willingly gave up.
Although the creation of the “modern” (unconstitutionally powerful) presidency is often attributed to Theodore Roosevelt, the “bully pulpit” was pioneered by his predecessor, William McKinley, who took advantage of a new national media to sell his programs directly to the people, who in turn pressured Congress to enact them. This development ended congressional dominance for most of the 1800s.
The bully pulpit was exploited by Roosevelt and Woodrow Wilson (especially during World War I) to expand presidential power. During the Great Depression and World War II, Franklin D. Roosevelt rapidly aggrandized executive power to make the presidency the first branch among equals. Although the moniker “imperial presidency” was first applied to the administration of Richard Nixon, the first imperial president was Harry Truman, who was given increased institutional power by Congress by the National Security Act of 1947 and then relied on “inherent powers” not mentioned by the Constitution to become the first president to take the country into a major war (the Korean conflict) without a congressional declaration.
During the ensuing Cold War, which lasted more than four decades, and the War on Terror, which continues, the powers of the presidency further expanded under Republican and Democratic administrations.
During the last century and a quarter, although the chief executive usurped Congress’s power, the legislative body gave it up willingly, especially in national security but later in the domestic arena — for example, Congress has delegated much of its constitutional power to impose tariffs to the president, and recently wouldn’t take any of it back to stop Trump’s destruction of the world trading system.
Similarly, Congress has ceded significant portions of its constitutional powers to the president, including the authority to initiate war, negotiate treaties with other countries, and oversee the federal government’s budget. Today, although the Constitution’s framers envisioned separate entities of government sharing some powers but competing for influence, partisanship has severely eroded those institutional checks and balances. If one party controls the executive branch and Congress, the legislative body becomes a supine doormat for presidential whims, as it has recently.
However, the framers’ system of checks and balances was broken long before Trump arrived; unfortunately, this dysfunction has allowed him to frolic into lawless merriment. The real solution is for Congress to grow a spine and take back some or all of its constitutional power. That now seems like a pipe dream, with the only hope now riding on the federal courts and the people to counter a rogue presidency.