In the six months since his inauguration, President Donald Trump has implemented many substantial executive orders, transforming American foreign and domestic policy. Just last month, he nationalized the Washington, D.C., Metropolitan Police Department and ordered the Justice Department to consider burning the American flag a crime when it incites violence. The president has also redesigned American foreign policy through unilateral actions on tariffs, dismantled the U.S. Agency for International Development, and furloughed large swaths of the executive bureaucracy.
As with everything about this president, his actions have provoked strongly opposite reactions. Liberals and Democrats see this as creeping authoritarianism, while conservatives and Republicans applaud it for bringing democratic accountability to an unwieldy and otherwise unresponsive federal bureaucracy.
The reality is much more commonplace than either side would have it. Like his predecessors over the last 100 years, Trump has used the inherent power of the presidency to expand executive power to accomplish his policy goals in the face of legislative gridlock. He might be unique in degree but hardly in kind. As objectionable or laudable as any of Trump’s specific actions may be, they are part of a broader trend — one that has come to unbalance radically the original constitutional system of separated powers.
“Executive orders” have only been systematically catalogued since the 1930s, but they are part of a tradition of unilateral presidential action that goes back to the Washington administration, which famously declared American neutrality in 1793 in the face of British and French hostilities.
The early origins of direct action speak to inherent powers that the president possesses. The first and most significant is his constitutional authority. Article II is short and vague, with a few key clauses that have been the basis for sweeping claims of presidential power. Most importantly, the president is solely invested with executive power, has a duty to take care that the laws are faithfully executed, and is the commander in chief of the armed forces. Combined, this grants him wide discretion in various policy domains, especially regulatory and foreign policy.
Congress has also given the president statutory authority, or the ability to use executive discretion, as certain cases may require. Far from jealously guarding its power, Congress has usually been happy to unload it to the president, as it foists upon the executive the responsibility for failure.
The president is on his strongest ground when these two authorities intersect. Regulatory policy is a good illustration. Congress will often write vague laws, such as those on environmental standards, that give the executive branch wide discretion. The president can then issue orders to centralize that power in the White House, thus promoting his ideological agenda. Foreign policy is another area of vast presidential authority, in which congressional deference combines with constitutional prerogatives to give the president authority not just in setting policy but in controlling information through the classification system and organizing the intelligence service itself.
Most controversially, presidents have also claimed an “inherent” power to act unilaterally, such as Abraham Lincoln’s suspension of habeas corpus during the Civil War or Teddy Roosevelt’s intervention in the 1902 anthracite coal strike. These are usually the most tenuous assertions of executive authority, and the most prone to being struck down, such as in 1952 when the Supreme Court struck down Harry Truman’s seizure of steel mills.
As federal power has increased, so has the portion that belongs to the executive branch. Indeed, the story of American history over the last 100 years can be told as an unending, triumphal march of the president over the other branches of government. Since the Great Depression, the dramatic proliferation of laws regulating all aspects of American life has served to increase executive power, as Congress is hesitant to make specific rules itself. And the international posture of the United States has expanded presidential authority, as American foreign policy became more essential to national prosperity.
The growth of unitary executive power is also a political process, one in which individual presidents, always searching to secure their political coalitions, have transformed the prerogatives of the executive branch in lasting ways.
In this essentially political game, the president enjoys an undeniable first-mover advantage. As the executive authority is vested solely in him, he can act before Congress or the courts, both of which are inherently deliberative. Granted, presidential action is most effective when there is widespread buy-in within the executive bureaucracy, but even so, the vesting of executive power solely in the president gives him an edge, often forcing Congress and the courts to react. Importantly, when the other branches accede to presidential moves, that is usually interpreted by the courts as acquiescence, thus legitimizing presidential authority.
Moreover, presidents learn from each other. The typical partisan framework casts Democratic presidents such as Barack Obama and Joe Biden as irrevocably opposed to Republican presidents such as Trump. That is true on a policy level, but in terms of institutional power, it is better to see them as aligned. Successful expansions of presidential authority by one president are institutionalized for their successors to adapt to their own purposes. One president’s strategy of expanding presidential power can be co-opted and modified by a subsequent president, even if they are partisan rivals.
All this happens within the background of our broader democratic politics. The president is the leader of a vast, national coalition that elected him to accomplish certain goals. Political success in Congress, in which the two sides usually have to compromise to get much done, is difficult to achieve in this age of hyperpolarization. The president thus has an incentive to be creative in his use of executive power. And sweeping executive actions usually have a built-in coalition of ideological supporters that numbers half the country, give or take. Even members of Congress of the president’s party will applaud what is in effect a diminution of their own powers. And the president’s opponents, while they decry executive tyranny in the moment, usually quiet down when their side returns to the White House.
No wonder the ratchet of executive authority has moved in only one direction over the last century. The short-term political logic of presidential action is essentially undeniable, for Democrats and Republicans alike. But these small accretions have added up to a dramatic degradation of a core constitutional principle: the separation of executive and legislative power. The founders built that into our system of government as a bulwark against tyranny. Bit by bit, since the Great Depression, we have done away with much of it.
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Thus, Trump rewriting the nation’s international trade laws with a single executive order, dramatic as it is, cannot be taken out of context. Indeed, it was President George W. Bush who created the Office of Faith-Based and Community Initiatives to coordinate federal spending with religious organizations despite its blurring of church-state boundaries established by the First Amendment. It was Obama whose Iran deal sought to reshape Middle East policy without bothering to negotiate a treaty approved by the Senate. It was Biden’s decision not to enforce the nation’s immigration laws that brought tens of millions of people into this country. The reality is that Trump is expanding executive power from an already vast foundation of presidential prerogative.
And if the past is prologue, the most likely consequence of Trump’s view of executive authority will be its ultimate institutionalization. Sure, the courts may strike down this or that provision, but many more will be accepted. And his political opponents will gnash their teeth until they return to power, when they will use the lessons Trump taught them to expand authority for themselves. In an age of sweeping federal power but a polarized and gridlocked Congress, executive action is one of the few levers of power for the majority party to control. Expect them to continue to pull it for all it is worth. The long-term constitutional implications, while dire, are not really a concern of those who temporarily wield power in our system.
Jay Cost is the Gerald R. Ford senior nonresident fellow at the American Enterprise Institute.
