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Those who wrote and wrangled over America\u2019s Constitution might be troubled by the second presidency of Donald J. Trump.<\/p>\n
While\u00a0almost all modern presidents flex their muscles<\/a>\u00a0in the initial stages of their administration, the\u00a0first weeks of the second Trump presidency<\/a>\u00a0have seen a rapid-fire, often dizzying array of executive actions that have sparked heated, even virulent, disputes among politicians, the media\u00a0and citizens about how much power the president<\/a>\u00a0of the United States should have.<\/p>\n Historians differ<\/a>\u00a0about the framers\u2019 precise intent regarding the executive branch. But the general consensus is twofold: First, domestic lawmaking power, including the critical \u201cpower of the purse<\/a>,\u201d would rest with Congress; second, the president would not be the equivalent of a king.<\/p>\n Fresh off the coercion of King George III, the framers were in no mood to recreate the British system. They debated extensively about whether the executive branch\u00a0should be led by more than one person<\/a>. A single chief executive was eventually favored in part because other institutional checks, including the selection of the president by the American people and Congress\u2019 ability to impeach, seemed sufficient. And, of course, Congress would retain lawmaking powers.<\/p>\n Almost immediately, however,\u00a0Congress began delegating<\/a>\u00a0some of that power to the presidency. As the nation grew and Congress found itself unable to manage the ensuing demands, it put more and more policymaking powers into the executive branch.<\/p>\n Congress frequently passed vaguely worded statutes and left important details largely to the president about how to manage, for instance,\u00a0immigration<\/a>\u00a0or\u00a0the environment<\/a>. President-as-policymaker and the development of an immense federal bureaucracy that is now in the crosshairs of Trump and Elon Musk was one unintended result.<\/p>\n Whether the current American president has become a king, particularly after the\u00a0sweeping grant of immunity in 2024 by the Supreme Court<\/a>\u00a0and the seeming\u00a0acquiescence by Congress to Trump\u2019s latest directives<\/a>, remains up for debate.<\/p>\n In 2019, Trump said, \u201cAnd then I have an Article 2, where I have the right to\u00a0do whatever I want as President<\/a>.\u201d<\/p>\n I\u2019m a constitutional law scholar<\/a>, and I can comfortably respond: With all due respect, Mr. President, no. Article 2 does not grant the president unlimited power.<\/p>\n Here\u2019s what the Constitution does say \u2013 and doesn\u2019t say \u2013 about the power of the president.<\/p>\n The Constitution<\/a>\u00a0divides power among the three branches of the federal government \u2013 executive, legislative and judicial.<\/p>\n Article 1<\/a>\u00a0specifies in great detail the structure and powers of Congress. In comparison,\u00a0Article 2<\/a>\u00a0is relatively short, outlining the powers of the\u00a0executive branch<\/a>, which now encompasses the president, his advisers and various departments and agencies.<\/p>\n There is no extensive laundry list of enumerated powers for the executive branch. Instead, there is a smattering. The president is given the power to \u201cgrant reprieves and pardons,\u201d to \u201creceive ambassadors,\u201d and, with the consent of the Senate, \u201cmake treaties\u201d and \u201cappoint\u201d various federal officials. The president is also the \u201cCommander in Chief.\u201d<\/p>\n Aside from the ability to\u00a0veto legislation<\/a>\u00a0and\u00a0\u201crecommend\u201d policies<\/a>\u00a0to Congress, the president was intended to serve primarily as an administrator of congressional statutes, not a policymaker.<\/p>\n It is other, much less precise language in Article 2 that undergirds much of what Trump claims he can do \u2013 and what opponents say he cannot.<\/p>\n Specifically,\u00a0Section 1<\/a>\u00a0states, \u201cThe Executive power shall be vested in a President,\u201d and\u00a0Section 3<\/a>\u00a0requires the President to \u201ctake care that the laws be faithfully executed.\u201d<\/p>\n On their face, these \u201cvesting\u201d and \u201ctake care\u201d clauses seem relatively innocuous, reflecting the framers\u2019 view that the President would implement rather than create the nation\u2019s public policy. Congress would have that prerogative, with the president generally confined to ensuring those laws were carried out appropriately.<\/p>\n Trump and his allies, however, have seized on these words as authorizing unlimited control over each of the\u00a04 million employees of the executive branch<\/a>\u00a0and, through program changes and spending freezes, allowing him to exert significant policymaking power for the nation.<\/p>\n The administration has now surpassed what even the strongest proponents of presidential power\u00a0may have once argued<\/a>.\u00a0Trump adviser Stephen Miller<\/a>\u00a0has said, \u201cAll executive power is vested in the one man elected by the whole nation. No unelected bureaucrat has any \u2018independent\u2019 authority.\u201d<\/p>\n Yet the overriding goal of the framers at the Constitutional Convention was to avoid creating an American version of the British monarchy, with a single, unaccountable ruler in charge of national policymaking, free to implement his vision at will.<\/p>\n In the\u00a0view of Trump\u2019s critics<\/a>, this is precisely what has occurred.<\/p>\n Trump is not the first president to use Article 2\u2019s ambiguity to push the boundaries of executive authority.<\/p>\n Particularly since the end of World War II and the Franklin D. Roosevelt administration, presidents have seized upon the same phrases in the Constitution to put their particular political agendas into action.<\/p>\n Barack Obama, for instance, famously touted his \u201cphone and pen<\/a>\u201d as a way to make policy when Congress refused.<\/p>\n The vehicle for most executive branch policymaking, including by Trump, has been the\u00a0executive order<\/a>. Executive orders are mentioned nowhere in the Constitution, but presidents have, since the very earliest days of the republic, issued these directives under their \u201cexecutive\u201d and \u201ctake care\u201d power. Since the founding,\u00a0there have been tens of thousands<\/a>\u00a0of executive orders, used by Democratic and Republican presidents alike.<\/p>\n Often, executive orders are relatively minor. They\u00a0form commissions<\/a>,\u00a0set holiday schedules<\/a>\u00a0or\u00a0brand an agency with a new seal<\/a>. Dozens are signed unnoticed during every administration.<\/p>\n In other instances, they have sweeping and substantive effect.<\/p>\n Among those, Abraham Lincoln\u2019s\u00a0Emancipation Proclamation<\/a>\u00a0freed Southern slaves, Franklin Roosevelt\u00a0placed Japanese Americans in internment camps<\/a>,\u00a0Harry S. Truman integrated the military<\/a>, and Joe Biden\u00a0forgave student loans<\/a>. Trump has\u00a0attempted to redefine birthright citizenship<\/a>\u00a0\u2013 a move which, for now, has been\u00a0stopped by federal courts<\/a>.<\/p>\n Because they have the force of law and remain in place until revoked by a subsequent president, executive orders have often faced legal challenges. Currently,\u00a0there are more than 80 lawsuits<\/a>\u00a0challenging Trump\u2019s executive orders for violating both federal law and the Constitution.\u00a0Some<\/a>\u00a0orders, but\u00a0not all<\/a>, have been halted by lower courts.<\/p>\n But if many presidents have believed that Article 2 of the Constitution gives them the power to make policy via executive order, the nation\u2019s highest court hasn\u2019t always agreed.<\/p>\n Requests to the high court to rule on Trump\u2019s executive orders are a virtual certainty.<\/p>\n Historically, the\u00a0Supreme Court has struck down some executive orders<\/a>\u00a0as outside the scope of Article 2. As the\u00a0court wrote in 1952<\/a>, \u201cIn the framework of our Constitution, the President\u2019s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.\u201d<\/p>\n Whether Trump\u2019s various directives are within his Article 2 authority or violate both the letter and spirit of the Constitution awaits determination, most likely by the U.S. Supreme Court. Much of the genius of that document is its often ambiguous language, letting the government adapt to a changing nation.<\/p>\n Yet that very ambiguity has allowed both sides of today\u2019s political divide to claim that their version of executive power is faithful to the framers\u2019 vision. As with the Civil War and the Civil Rights Movements, such a dispute could very well drive the U.S. to the breaking point.<\/p>\n Congress or the American people may eventually decide that Trump has gone too far. The next presidential election is years away, but Congress still retains the power of impeachment. More realistically, they could rein him in via legislation, as\u00a0they did with President Richard Nixon<\/a>.<\/p>\n For now, it is up to the judicial system to evaluate what the administration has done. Courts will need to use their constitutionally mandated authority to evaluate whether Trump has exceeded his.<\/p>\nExploiting imprecise language<\/strong><\/h4>\n
Going around Congress<\/strong><\/h4>\n
Out of bounds?<\/strong><\/h4>\n