As we move toward the end of the Trump era, we need to reckon with the changes his administration has wrought in the American system of government. The most significant is the enormous concentration of power, not just in the executive branch as a whole, but in the office of the president. Any successor administration, Republican or Democratic, will inherit these powers, and will have to decide how it wants to define the limits of executive authority in the future.
The U.S. Constitution limits presidential power in a number of ways. Article I says that laws and budgets are made by Congress, and Article II says the president’s chief duty is to see that the laws are “faithfully executed.” He can choose his own cabinet officers, but they must be confirmed by the Senate. The president has more discretionary authority with regard to foreign policy and national security, where he is designated commander-in-chief of the armed forces. Yet even in this sphere, the right to declare war and ratify treaties is given to Congress.
Donald Trump has tried to expand executive authority in any number of ways. From Day One of his second administration, he has issued a blizzard of executive orders that have in effect usurped Congress’s legislative powers. In some cases he has acted under obscure legal powers, many of which were later found by the courts to be inappropriate. In other cases he has simply acted illegally or unconstitutionally. Among the many examples are:
- Ending birthright citizenship;
- His failure to spend money appropriated by Congress;
- The closing of entire departments, such as the U.S. Agency for International Development, that had been established by Congress;
- Attempting to assert federal authority over election administration;
- Using emergency powers to impose tariffs in an arbitrary and discretionary manner;
- Firing federal employees protected by statute;
- Launching a major war without seeking authorization from Congress.
The lower courts have blocked many of these initiatives, and the Supreme Court has reversed both the birthright citizenship order and the tariffs imposed last year under the International Emergency Economic Powers Act (IEEPA).
However, the Supreme Court has not yet ruled on many of the other cases, and in one case clearly ruled in favor of the administration. That was Trump v. Slaughter, decided last month, which overturned an earlier Supreme Court decision called Humphrey’s Executor. That precedent, set in 1935, upheld the right of Congress to impose limits on the president’s power to change the composition of the boards of supposedly “independent” multi-member regulatory agencies like the Federal Communications Commission and the Federal Trade Commission.
The Slaughter decision may seem technical, and has received relatively little public attention. The one multi-member federal agency that the public (and more importantly the markets) care about is the Federal Reserve Board, where Trump had already tried to fire one member, Lisa Cook. The Supreme Court exempted the Fed from its general evisceration of Humphrey’s Executor, arguing somewhat speciously that the Fed has a different historical status from other agencies and therefore its board could remain protected from political interference.
The Slaughter decision, however, has huge implications for the way America will be governed in the future, and it is only the first shoe to drop in a long-term conservative effort to remake the federal executive. Humphrey’s Executor had been the long-term target of conservatives under a doctrine of the “unitary executive.” They argued on originalist grounds that the Constitution gave executive authority to the president alone, who, as a democratically legitimated official, could not be restricted by Congress in his control over the executive branch.
There is a certain logic to this position, one that has been supported not just by conservatives but by certain progressives as well. Most prominent in the latter camp was President Franklin D. Roosevelt, who in the 1930s sought to remove William Humphrey (who was accused of blocking FDR’s legislative agenda) as a commissioner of the Federal Trade Commission. Humphrey’s removal was overturned by a conservative Supreme Court.
To this one could add the following argument. No one questions the right of the president to appoint, with the Senate’s approval, Cabinet secretaries and other senior officials, or to unilaterally remove them. The president’s right to appoint or remove the heads of agencies led by a single individual, like the CDC or NASA, is not contested. So why should those with multi-member boards be treated differently?
The argument I would make against the theory of the unitary executive is not based on any originalist reading of the Constitution. It is rather based on a pragmatic observation. Today’s executive branch is so large, sprawling, and powerful that there needs to be a separation of powers within the executive, and not simply between the executive and the other two branches of government. The chief argument in favor of such a separation has to do with the preservation of the expertise that is necessary to run a modern state.
We see this most clearly in the case of the Federal Reserve, which in the Slaughter decision was somehow exempted from political control. Painful experience with inflation has taught the United States and other countries around the world that central banks must be made independent. The incentives of politicians are almost always short-term and aimed at their political self-interest. The independent structure of the Fed and its multi-member board protects it from politicization and enhances its ability to operate according to the judgment of the experienced professionals who run it-i.e. PhD economists and practitioners with deep experience with financial markets.
Quite apart from the illegality and unconstitutionality of many of the Trump administration’s actions, there is also its incompetence.
That incompetence has been on display since the beginning of the second term, when Trump appointed a series of individuals with no expertise in the agencies they were to run: Tulsi Gabbard as Director of National Intelligence, TV commentator Pete Hegseth as Defense Secretary, vaccine denier Robert F. Kennedy Jr. as Secretary of Health and Human Services, and podcaster Kash Patel as head of the FBI.
The consequences are clear: by sidelining regional experts throughout State, Defense, and the intelligence community, for example, there was no one to warn the president that launching a massive air assault on Iran might lead to the closing of the Strait of Hormuz.
The Justice Department likewise has been diverted from its role as impartial enforcer of the law to being an instrument for Donald Trump’s personal revenge campaign. By forcing out career prosecutors, the department found its cases susceptible to being overturned by the courts and indictments rejected by grand juries across the country.
Underlying the theory of the unitary executive is a flawed concept of hierarchical organization that is as incorrect as it is widespread. “Principal-agent theory” is commonly used by economists and other social scientists to understand the dysfunctions of hierarchies. All authority lies with the principal; agents are simply expected to carry out the wishes of the principal and problems arise only when the agents follow their own agenda.
As Nobel laureate Herbert Simon pointed out many years ago, this is not how real-world organizations work. Agents, including front-line workers at the bottom of hierarchies, often have more expertise and local knowledge than the principals who give them orders. As a result, authority in many organizations flows from the agents to the principal. This is a truth understood in well-functioning militaries, which give their junior officers substantial authority and advise senior commanders not to micro-manage.
So too in the U.S. government. The knowledge of how to deal with an airline accident, or a sudden disease outbreak, or indeed a financial crisis, will not lie with the democratically-elected politician at the top of the hierarchy, but rather with the experts who have the training and experience to act. A well-designed government needs to have mechanisms for protecting that expertise.
Multi-member commissions are a very imperfect means of doing this, but they do at least make it more difficult for an incompetent president to do his destructive work. There are other important protections for expertise as well, such as requirements for “for cause” removals, which protect officials from arbitrary firing. Such constraints have been a clear target of the Trump administration.
Another critical protection for expertise lies in Senate confirmation: in most administrations, the Senate will simply not confirm blatantly unqualified people for senior positions. One of the greatest failures of the current Congress is its unwillingness to exert this authority in so many prominent cases.
The Trump administration’s war on expertise has only just begun. Greater political control over senior officials in multi-member commissions will have limited day-to-day impact on most citizens. But believers in the unitary executive want to extend that control to the whole of the federal government, such that every government worker, down to your local postmaster, will be subject to removal by a political boss.
This assertion of executive authority was attempted at the end of the first Trump administration with an executive order creating a new “Schedule F” employment designation into which the whole of the civil service could be moved, and then fired or replaced at will. Schedule F was rescinded by the Biden administration, but has re-emerged in the second Trump term as “Schedule P/C.”
This is not a casual innovation off the top of Donald Trump’s head. The authors of the Heritage Foundation’s Project 2025 spent their four years out of office designing a policy that would allow them to radically reshape the entire federal bureaucracy, and to eliminate the checks and balances that Congress had inserted over the years to limit the president’s power. The overturning of Humphrey’s Executor is only part one of this plan; the administration’s war against the “deep state” also seeks to invalidate the 1883 Pendleton Act, which first created a merit-based civil service. This will return the United States to the 19th-century spoils (or patronage) system, whereby not just top policy-makers but all government officials were put in place by a politician in return for political loyalty.
The spoils system was known for its corruption at all levels of government, from Credit Mobilier to Tammany Hall. Today we have massive corruption at the top levels of government, beginning with Donald Trump and his friends and family. But the elimination of a professional civil service will open up vast new areas for corrupt behavior in every city and county in the United States. Project 2025 is unapologetic about this, arguing that the patronage system was unfairly criticized.
The next president - and there will be a next president- will have to confront the question of how much of the authority claimed by Donald Trump he or she will want to retain. This is a complicated question, because the status quo ante was very problematic. As I’ve argued in previous articles, the government really has become over-constrained in its ability to take action. A new president will face many obstacles to implementing their desired agenda, and will be strongly tempted to use the kind of executive power claimed by Donald Trump. The next president needs to come into office not just with new policies, but with clear plans for how to use the mechanisms of government to get them done.
The time to start thinking about these questions is now: we cannot put this off until January 20, 2029, when a new president will be facing immediate political pressures to act. The Republicans spent their four years out of power coming up with clever strategies to get their way, which they have been implementing in the second term. Those backing a post-Trump administration need to do the same.
I hope to be able to outline some of the ways that authority can be structured in future articles.
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