executive power essay

executive power

Primary tabs, executive power: an overview.

In its first three articles, the U.S. Constitution outlines the branches of the U.S. Government , the powers that each branch contains, and the limitations to those powers.  Article II  outlines the duties of the Executive Branch .

The President of the United States is elected to a four-year term by electors from every state and the District of Columbia. The electors make up the  Electoral College , which is comprised of 538 electors, equal to the number of Representatives and Senators that currently make up Congress . The citizens of each state vote for slates of electors who then vote for the President on the prescribed day, selected by Congress.

To become President, a person must be a  natural born citizen  of the United States. Naturalized citizens are ineligible, as are persons under the age of 35. In the case that the President should be unable to perform their duties, the Vice-President becomes the President (see: 25th Amendment ).  The 22nd Amendment places a two-term limit on the presidential office.

The President:

• They have the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.
• They can also receive ambassadors and work with leaders of other nations.
• The U.S. Senate is charged with approving these nominations.
• Can issue  executive orders , which have the force of law but do not have to be approved by Congress.
• Can issue  pardons  for federal offenses .
• Can convene Congress for special  sessions .
• It is not a  line-item veto , meaning that the President must veto the entire bill, rather than parts of it.
• Further, a presidential veto can be overridden by a two-thirds vote by Congress.
• Delivers the  State of the Union address  annually to a joint session of Congress.

Congress holds the power to declare war. As a result, the President cannot declare war without their approval. However, as the Commander in Chief of the armed forces, Presidents have sent troops to battle without an official war declaration (which happened in Vietnam and Korea). The 1973  War Powers Act  attempted to define when and how the President could send troops to battle by adding strict time frames for reporting to Congress after sending troops to war, in addition to other measures, however it has not had much effect (see " War Powers Resolution " section in the  Commander in Chief Powers  article).

Nominations

The President is responsible for nominating candidates for the head positions of government offices. The President will typically nominate cabinet officials and secretaries at the beginning of their presidency and will fill vacancies as necessary. In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice. These nominations must be confirmed by the Senate. While the President usually has broad appointment powers, subject to Senate approval, there are some limitations. In  National Labor Relations Board v. SW General Inc.   (2017), the Supreme Court decided that the " Federal Vacancies Reform Act of 1998 [FVRA] , which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA."

Further, the President is constitutionally allowed to make recess appointments when the Senate is not in session (which means that such appointments are not subject to Senate approval until the end of the session). However, In National Labor Relations Board v. Noel Canning , the Supreme Court ruled that "for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business." As such, the Senate can claim to always be in session, therefore preventing the President from making any recess appointments.

Executive Orders

In times of emergency, the President can override Congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War,  Woodrow Wilson issued numerous pardons related to US involvement in World War I ( 1913-1920 ), and in 1942  Franklin Roosevelt approved Japanese internment camps during World War II with an executive order .

The U.S. Constitution gives the President almost limitless power to grant pardons to those convicted of federal crimes . While the President cannot pardon someone impeached by Congress, they can pardon anyone else convicted of federal crimes without any Congressional involvement.

The Extent of the President's Powers

Article II of the Constitution contains the vesting clause , which states: "The executive Power shall be vested in a President of the United States of America." This has historically been interpreted to mean that the President is the head of the Executive Branch, but is still subject to limits within that Branch (i.e. if the President fires members of the Executive Branch, Congress would have oversight and would be able to investigate the firings). Some scholars, however, have interpreted the vesting clause under a much stronger lens, finding that the President has full power over the entire Executive Branch. Under this theory, commonly referred to as the unitary executive theory , any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight (i.e. Congress would not be able to investigate the President's firings of any members of the Executive Branch). While the Supreme Court has not directly embraced or rejected this theory, Justice Alito has made comments which have caused some to think that he endorses the theory: "The president has not just some executive powers, but the executive power — the whole thing."

Federal Material

U.s. constitution.

• Article II - Executive Power
• Amendment XII  - Election of President and Vice President (1804)
• Amendment XX  - Presidential Term and Succession
• Amendment XXII  - Two Term Limit on President
• Amendment XXV  - Presidential Succession

Federal Statutes

• U.S. Code:  Title 3  - The President
• U.S. Code:  Title 50, Chapter 33  - War Powers Resolution
• U.S. Code:  Title 50, Chapter 34, Subchapter II, § 1621  - Declaration of a National Emergency by President

Additional Resources

• Official U.S. Executive Branch Web Site
• USA.gov: Federal Executive Branch
• American Presidency Project - Executive Orders
• A Guide to Emergency Powers and Their Use
• War Powers Resolution: Concepts and Practice

Related Topics

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Signed in convention September 17, 1787. Ratified June 21, 1788. Portions of Article II, Section 1, were changed by the 12th Amendment and the 25th Amendment

The executive Power shall be vested in a President of the United States of America.

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will 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."

Interpretations & Debate

Read interpretations of article ii, section 1.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Read Interpretations of Article II, Section 2

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Read Interpretations of Article II, Section 3

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Read Interpretations of Article II, Section 4

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Events, news & press, the expanding power of the presidency.

Jay Cost on The President’s Czars: Undermining Congress and the Constitution by Mitchel A. Sollenberger and Mark J. Rozell

Mitchel A . Sollenberger and Mark J. Rozell . The President’s Czars: Undermining Congress and the Constitution . University Press of Kansas. 356 Pages. $39.95.

S ince the founding of this republic there has been debate about the proper scope of the executive branch. Chastened by the tyranny of George III, the first independent state governments emphasized weak executives, and the Articles of Confederation prescribed none whatsoever. But the social and political turmoil of the 1780 s taught the earliest generation that they had swung too far in the opposite direction — and the Constitution was basically a compromise between the extremes of no executives and a totalitarian monarchy. It called for an executive that would have vast powers in foreign affairs, great limits in both managing domestic policy and initiating war, and above all a dependence on both the Congress and the sovereign states (and, eventually, the whole people).

The debate over a strong executive branch would not end with the ratification of the Constitution, as vigorous presidents like George Washington and above all Andrew Jackson induced fears among ardent republicans that a creeping monarchism was afoot in the New World. Indeed, the extent of executive power became a focal point of the so-called “Second Party System” of 1824–60 , as the National Republicans (later the Whigs) blanched at the strong executive leadership of Jackson — King Andrew I, as he was derisively known — as well as James K. Polk.

The Abraham Lincoln presidency during the Civil War was the strongest executive the country had seen to date, but after Reconstruction the executive fell into the background for the next generation. Civil service reform took from the president a major source of his political power — namely, patronage; the closeness of elections from 1876 through 1892 meant that no chief executive could really claim a governing mandate; and anyway the federal government had not yet claimed the kind of regulatory and redistributive powers needed to address the problems of industrialization, urbanization, and overexpansion into the West. In other words, the politics of the period were small, and so therefore was the executive branch.

The progressive era brought a lasting change to this state of affairs. Presidents Theodore Roosevelt and Woodrow Wilson had a fundamentally different vision of the executive branch than their immediate predecessors, and indeed really any prior president going back to at least Jackson. They envisioned the presidency as the mediator of the national interest — something quite distinct from what our Congress-centered Constitution prescribes — and thus saw the occupant of the White House as a ceaseless source of activity: communicating to the public about what the national interest requires, placing pressure on recalcitrant legislators, taking an active lead as head of a national political party, and generally rallying the nation to whatever cause he deems important.

Enterprising chief executives innovate new pathways of power, are met with little resistance, and thus the innovations soon become norms. Most presidents since TR have contributed to this process, regardless of party or ideology.

With the exception of the presidencies of Warren Harding and Calvin Coolidge from 1921 through 1929 , this view of the presidency has more or less obtained ever since. Republicans and Democrats, conservatives and liberals, have all ascribed to it — at least when their side resides at 1600 Pennsylvania Avenue. What’s more, this view has taken hold as a normative ideal both in the academy and the public at large.

The standard text for any presidential history class remains Richard Neustadt’s Presidential Power , which unabashedly celebrates this modern presidency over the mere “clerkship” of the late 19 th century. What’s more, presidential rankings by historians inevitably favor those commanders in chief who acted in a “modern” way — fdr , tr , Wilson, etc. — while leaders like Grover Cleveland and Coolidge are regularly dismissed as forgettable.

How do we explain this change, in light of a written Constitution? After all, the very purpose of writing down the organizing principles of the government was to prevent slow alterations to the way politics is conducted. And yet, that is exactly what we have seen with the presidency. If anything, the only amendments to the Constitution since the 1700 s have actually limited the power of the chief executive, formally limiting him to two terms, and yet the power of a Barack Obama is vastly superior to, say, Benjamin Harrison. What to make of this?

An interesting quirk of our constitutional system is how it can be altered without amendment. If a leader — usually the president — takes power for himself that is not strictly within the boundaries established by the Constitution, and the people do not complain loudly and long enough, then the founding document is effectively amended, as a new precedent is established. This is the primary way that the country has developed an immensely powerful commander in chief, despite the fact that the Constitution dedicates less than 1,000 words to the executive branch.

It has been in this manner that, over the last 100 years, the scope of the presidency has grown: Enterprising chief executives innovate new pathways of power, are met with little resistance, and thus the innovations soon become norms. Most presidents since tr have contributed to this process, regardless of party or ideology. No president or political movement has ever reversed the trend, nor really ever tried.

It is undeniable that this expansion of presidential power has disrupted the traditional relationship between the executive and legislative branches. We can see this in a number of different dimensions. The Framers, for instance, carefully separated the power to declare war and execute a war between the Congress and the president, but today the president has power to do both and Congress merely ratifies the decision after the fact. Similarly, the power to make domestic policy and execute it was intentionally divided between the two branches, but today Congress regularly issues directives so broad that the executive is tasked with formulating and executing policy. (In a similar vein, the Congress has agreed to an effective end-run around the constitutional provision that all tax bills must originate in the House. The Senate regularly constructs such bills, and places them as an amendment to some otherwise mundane piece of legislation passed by the House.)

Additionally, presidents often engage in extra-legislative policymaking through the use of executive orders. Even though their authority does not trace back to the Constitution, executive orders from Lyndon Johnson and Richard Nixon actually established the highly contentious principle of affirmative action in federal contracting. There is also the broader and broader invocation of “executive privilege,” which is not to be found in the Constitution either but is now commonly cited for purely political purposes. Another extra-constitutional innovation, known as “signing statements,” have effectively granted the president a line-item veto, something the Supreme Court has explicitly rejected as unconstitutional. Nevertheless, presidents use signing statements as legal cover not to implement portions of laws that they find unacceptable.

P erhaps most disconcerting of all these extra-constitutional innovations is the rise of the “czars,” the subject of an excellent new study by Mitchel Sollenberger and Mark Rozell. The two authors explicitly reject the “utilitarian” approach of presidential scholarship — embodied in the works of researchers like Neustadt or Charles O. Jones, who focused on what works or doesn’t work for the presidential agenda — and instead adopt a “public law” frame to analyze the rise of czars. In other words, they are primarily interested in the extent to which czars are compatible with the traditional notions of republicanism, or rule by the people, as well as the system of checks and balances that give Congress oversight of many executive activities.

They then define a czar as an executive branch official not confirmed by the Senate but possessing power to impose rules and regulations, oversee budgets, or coordinate executive policy responses. They find that czars exercise substantial power outside the traditional constraints imposed by the Constitution. Perhaps no better example can be found in the person of Steve Rattner — President Obama’s “auto czar” — who set the terms of the bailouts of Chrysler and gm , based upon a rather tendentious reading of the tarp legislation, in ways that were contrary to longstanding rules in bankruptcy court and highly preferential to the United Auto Workers, a vital constituency of the Democratic Party.

Though the czars have become an easy target of conservative criticism during the Obama years, it is a fact that presidents of both parties have made use of them. Indeed, it makes a great deal of sense because, unlike cabinet heads and other executive officers, czars operate independently of the Congress.

Employing a very precise methodology for determining who really is a czar and who is mislabeled as such by the media, they find the first czars emanating (unsurprisingly) out of the Woodrow Wilson administration, and in particular the national response to World War I. fdr used czars to deal with the emergencies of the Great Depression and World War II, but in time czars transformed from an extraordinary position to deal with an extraordinary situation to a common appointment. Ronald Reagan had three czar positions, George H.W. Bush and Bill Clinton both had two, George W. Bush had eight, and Barack Obama — who as a candidate complained about the executive excesses of his predecessor — has a whopping twenty czars running around the West Wing, all of whom exercise substantial power independent of the Congress and, by extension, the people themselves.

These czars — like signing statements, executive orders, and the breakdown of clear lines of authority between congressional and executive war-making and domestic policymaking — trace back to the progressive innovation of the vigorous executive. We should not be surprised that occupants of the three branches search everywhere and anywhere to expand their power at the expense of their constitutional rivals. The public pressure of the exuberant presidency has induced the occupants of the White House to push harder than ever, as they know full well that they will be evaluated at the ballot box and then by history not by how well they have executed their duties under Article II but how they have managed the entire country. Put another way, if the public is going to praise or blame the president for the quarterly Gross Domestic Product report, then it should come as no surprise that he will do anything and everything he can get away with to make sure the numbers are good.

This should trouble those who cherish our constitutional regime, one that envisioned a republic in which the Congress would take the lead in public policy and that prized checks and bal- ances above the utility of a vigorous executive. And it is for such readers that Sollenberger and Rozell provide an additional service. Going against the 60-year trend in scholarship that celebrates — implicitly or explicitly — the active and energetic model of presidential action, the authors offer a stark warning about the republic’s czarist regime:

We are deeply troubled by these developments. Czars are a constitutional aberration, a direct violation of the core principles of a system of separation of powers and government accountability. Presidents may find some utility in having czars. Many members of Congress may even be content to defer to the executive branch to undertake complex policy problems and the responsibility for any outcomes. Organized groups and many concerned citizens may also appreciate the seriousness that a president attaches to their issues when he appoints one person to solve them. None of that should override the rule of law. The constitutional framers did not create this delicately balanced system of separated powers for the convenience of officeholders or to achieve efficiency or immediate gratification of citizens. Different forms of government can better achieve those ends; ours should stay true to the principles of balanced and constrained powers. Czars do severe damage to our principles and the practice of creating and appointing them should be stopped.

Unfortunately, the authors stop short of how to remedy this situation, and perhaps with good reason. In Chapter Five, they note that the congressional response to the so-called “imperial presidency” of the Nixon administration was much heavier on the smoke than the fire, and after a few years of respite, we have seen the executive branch begin to encroach more and more, with little pushback from the other branches.

That congressional inaction is worth considering in some detail. After all, the Constitution is what it is — regardless of the informal innovations that have been heaped upon it in the last 100 years — meaning that Congress could, in theory, restore its primacy quite easily, if it were so inclined. Clearly, it is not — as evidenced by the tepid response to Watergate as well as the widespread acceptance of the vast expansions of the executive under George W. Bush and Barack Obama. Why has Congress been so loathe to assert itself?

The answer is as obvious as it is troublesome: The people do not want it to . Despite the bad publicity that has recently surrounded the czars, signing statements, presumptuous executive orders, and the like, the great majority of the people are sufficiently content with an active executive branch that they are willing to tolerate these excesses.

Thus the rise of the czars, as well as other troubling aspects of the modern presidency, connect inevitably to the quantitative and qualitative growth of the federal government. Indeed, one cannot escape the warnings offered by Alexis de Tocqueville at the end of Democracy in America , when he conceived what a democratic tyranny would look like:

Our contemporaries are constantly excited by two conflicting passions: They want to be led, and they wish to remain free. As they cannot destroy either the one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite: They console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large who hold the end of his chain.

This is a fair description of the modern, federal welfare state, which provides each citizen with a panoply of resources from birth until death. It is not practical for the United States Congress — so often unruly, divided, and undisciplined — to offer such a comprehensive program of entitlements. Instead, the most sensible place to vest this power is in the presidency — that fulfills Tocqueville’s condition of apparent freedom but comforting servitude.

Viewed from this perspective, the imperial presidency and the weak congressional response to it make much more sense. The people have made a rational, cost-benefit calculation: Sure, a broadly powerful executive branch imposes upon areas constitutionally owned by the Congress, but it also makes sure Social Security checks are cut on time, Medicare pays the doctors, and the Head Start programs stay open. All the while a false sense of individual liberty is retained.

At the close of the Constitutional Convention in 1787, Benjamin Franklin was asked, “Well, Doctor, what have we got — a Republic or a Monarchy?” He responded, “A Republic, if you can keep it.” Maybe the rise of the imperial presidency — including the troubling creation of this czarist regime — is a sign that, somewhere along the way, we’ve lost the republican character of our government, and instead, as Tocqueville worried, embraced a kind of soft despotism that provides cradle-to-grave amenities along with the illusion of popular control.

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US government and civics

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• Expansion of presidential power
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• Federalist No. 70

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Executive Power

53 Pages Posted: 15 Jun 2019

John C. Harrison

University of Virginia School of Law

Date Written: June 3, 2019

This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.

Keywords: executive power, presidential power, separation of powers, constitutional structure, constitutional law

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The Imperial Presidency’s Enablers

Why executive power grows unchecked, by stephen i. vladeck.

Phantoms of a Beleaguered Republic

By stephen skowronek, john a. dearborn, and desmond king.

In 1866, the U.S. Supreme Court handed down its landmark decision in Ex parte Milligan , which barred the federal government from trying civilians in ad hoc military tribunals when civilian courts were available. Writing for the majority, Justice David Davis spent several pages explaining the dangers of an unchecked executive. The United States, he said, “has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution.” Instead, “wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.” That is why the United States has a written constitution, he concluded, and independent judges to enforce it—even, as in the case of Milligan , against President Abraham Lincoln himself.

Yet the executive branch has fared quite well in the courts in the years since Davis made his dire warning about unchecked presidential power—including during Donald Trump’s presidency. Of Trump’s various abuses of authority, few were exposed, confirmed, or punished by the courts, which did little to stymie his power grabs. True, the Trump administration lost some high-profile legal challenges to several of its more controversial policies, including its clumsy effort to rescind the Deferred Action for Childhood Arrivals program (also known as DACA) and its even clumsier effort to add a question about citizenship to the 2020 census. And Trump himself effectively lost a pair of major disputes over subpoenas from Congress and a Manhattan district attorney for his financial records. But any objective accounting of the power of the executive branch would have to concede that President Joe Biden had more constitutional authority on his first day in office than President Barack Obama had on his last.

In their powerful and succinct monograph Phantoms of a Beleaguered Republic , the political scientists Stephen Skowronek, John Dearborn, and Desmond King evaluate the long-standing tension between two competing theories of executive power—one that locates power in the person of the president and another that finds it in the administrative state—and argue that this tug of war has itself historically served as a check on presidential prerogatives. That vital tension, however, is disappearing quickly, and not because of policies pursued or abuses committed by Trump, Obama, or any other modern president. It is disappearing because of the Supreme Court.

The central thesis of Phantoms of a Beleaguered Republic is that the modern federal government is characterized by two irreconcilable ideas: on the one hand, that presidents supervise governance and should therefore be able to control it as they see fit and, on the other hand, that an expertise-driven bureaucracy should have authority over functions that are generally considered to be nonpartisan, everything from tax collection to national security planning.

Trump portrayed the deep state as part of an antidemocratic conspiracy—and the state pushed back.

Some degree of tension between these two competing visions is inevitable. Absent a consensus on what is appropriately partisan, an all-powerful White House and an immovable federal bureaucracy will view each other with suspicion. The authors devote most of the first half of the book to documenting how and when that antagonism began to fully manifest. They pay close attention to the rise of personal presidential leadership during and after the Civil War and to the two great expansions in the size and function of the federal government: first around the time of the New Deal and then again in the 1960s and 1970s. “By any historical reckoning,” they explain, “the expansion of national administrative capacities has been a boon for America’s chief executive” and has “turned American government into a presidency-centered government.” After all, the new powers and responsibilities of the executive branch as a whole inserted the federal government into ordinary Americans’ lives to a greater degree than ever before, with state involvement in everything from meat inspection and vehicle safety to environmental protection and government benefits. A bureaucracy was needed to administer these functions, and successive presidents, as the heads of this bureaucracy, were increasingly associated with these sprawling federal programs. But despite this symbiosis, the more powers and responsibilities the executive branch had, the more the chief executive and the administrative state vied for authority over those government functions.

These two concepts of the executive branch have been on a collision course for a long time. But what is new is not just a president more willing to push the envelope than any of his predecessors; it is also a Supreme Court dedicated to putting its thumb on the scale. Unlike during most of the twentieth century, when the Court simply helped maintain an equilibrium between the Oval Office and the administrative state, more recently, the Court has intervened in support of the office of the president, to the point that it can be blamed for enabling Trump’s war against his own bureaucracy.

Hanging in the balance

Although much has already been written on the dovetailing of the growth of presidential power and the expansion of the federal government, one of the delights of Phantoms of a Beleaguered Republic is the facility with which the authors recount both relevant history and leading scholarship. The first part of the book is an engaging account of the evolution of the federal government in general, and in particular what the Supreme Court justice Elena Kagan has described as “presidential administration,” or a federal government that is regularly and thoroughly supervised not only by individual agency heads but also by the White House. But the larger the federal bureaucracy grew and the more responsibilities it took on, the more complex and opaque its hierarchy turned, the more insulated from electoral accountability its officials became, and the more independence from the Oval Office it gained—in some cases simply by circumstance and in others because Congress expressly provided for such independence. What might be called, meant nonpejoratively, “the deep state” reflects the desire of a growing expert administrative apparatus—and, at various points, Congress—to shield more of the government’s decision-making authority from shifting partisan winds and from personal patronage and the incompetence that accompanies it.

While the federal bureaucracy was accreting independent administrative authority, however, conservatives in the 1970s and 1980s were embracing a rival interpretation of the constitutional separation of powers known as the unitary executive theory. This theory found fertile ground up and down Pennsylvania Avenue, particularly as Republican presidents were in office for 20 of the 24 years between 1969 and 1993, and it had powerful advocates in two executive-branch lawyers appointed to the Supreme Court by Republican presidents during this time, William Rehnquist and Antonin Scalia. The Constitution says that “the executive Power shall be vested in a President of the United States,” and the theory’s central idea is that, as Scalia once put it, “this does not mean some of the executive power, but all of the executive power.” In other words, executive power lies with the president and the president alone.

According to this line of thinking, any independence within the executive-branch bureaucracy is constitutionally forbidden, regardless of its value. Presidents, therefore, exercise unimpeded control over the administrative state and can dismiss whomever they please, whenever they please. This theory was trotted out to resist some of Congress’s most aggressive post-Watergate reforms, many of which were intended to strengthen the bureaucracy at the expense of presidential power—particularly in the areas of war powers and foreign affairs , where the arguments for executive primacy are the strongest.

The relationship between these two concepts—the deep state and the unitary executive—animates all of Phantoms of a Beleaguered Republic. “Together the two propositions construct a politics all their own,” the authors write. “They draw each other out and tear at one another.” If anything, the authors undersell the point: the tension between these two propositions itself has significant value. James Madison was referring to the relationship between the three branches of government when he argued in The Federalist Papers , no. 51, that “ambition must be made to counteract ambition,” but the same holds within the branches of government. So long as neither force dominates the other, they maintain a healthy equilibrium whereby presidents exercise broad control over the bureaucracy of the executive branch but use relative restraint, lest they provoke pushback from within.

Tipping the scales

Scalia wrote those pithy words about executive power at the end of his second term on the Supreme Court, in 1988, in a solo dissent to the Supreme Court’s ruling in Morrison v. Olson . That decision upheld the independent-counsel provisions of the 1978 Ethics in Government Act, which empowered the U.S. attorney general and a special division of the D.C. federal appeals court to appoint an independent counsel to investigate senior government officials, who, the reasoning went, the president’s handpicked attorney general might be unwilling or unable to investigate himself. Crucially, the act protected the independent counsel from being fired except for “good cause.” In Scalia’s view, this last part was the true offense, for if the president could not fire a lawyer vested with the power to enforce the laws of the United States, then he did not, in fact, have the executive power.

One of Morrison ’s most important holdings was that Congress could protect “inferior” executive-branch officers—in this case, the independent counsel—from being dismissed by the president without cause. “Principal” officers, including cabinet officials and ambassadors, have no such protection, or independence: these officers are appointed by the president and must be subject to removal at will. Thus, in the contest between the deep state and the unitary executive, Morrison tipped the scales in favor of the former.

The courts did little to stymie Trump's power grabs.

Morrison remains on the books today, but barely. Its wrongness has become an article of faith among contemporary conservatives, and as the Supreme Court has turned further to the right , its efforts to gut it have accelerated. In 2010, for instance, Chief Justice John Roberts, writing for a 5–4 majority, effectively neutered the Public Company Accounting Oversight Board, which was created in the aftermath of the Enron and WorldCom accounting scandals to oversee the audits of public companies. A provision that protected members of the board from removal except for good cause, the Court argued, interfered with the president’s constitutional authority, because, unlike in Morrison , these officers could be removed only by other executive officers whose removal also required good cause, meaning that the president’s capacity to dismiss them was further limited. The Court explained this ruling by arguing that one level of independence is constitutional but two, as in the case of the PCAOB, is not.

But the brakes have truly come off with the confirmation of the Court’s two newest justices. Brett Kavanaugh provided the fifth and decisive vote in the June 2020 ruling in Seila Law v. Consumer Financial Protection Bureau , which held that inferior officers otherwise covered by Morrison are not protected from removal without cause if they are the singular head of an independent agency, versus one of a number of commissioners in charge of an agency. In the abstract, the argument appeared plausible: the president should be able to hire and fire agency heads at will. But if the whole point of independent agencies is their independence, the ruling took a healthy bite out of Congress’s power to provide for such independence.

Earlier this year, Amy Coney Barrett cast the decisive vote in United States v. Arthrex , which handed proponents of executive power an even more significant victory by dramatically narrowing the circumstances in which executive officers are considered “inferior” and are thus insulated from direct presidential control. At issue in Arthrex were the 200 or so patent judges within the U.S. Patent and Trademark Office who hear challenges to the validity of patents granted by the federal government. With Clarence Thomas joining the three Democratic appointees in dissent, the 5–4 majority held that even these minor executive-branch adjudicators are in fact “principal” officers under the Constitution because their decisions are not supervised by an executive-branch officer. In one fell swoop, the Court significantly winnowed the ranks of bureaucrats protected from presidential removal by Morrison and substantially increased the president’s direct control over administrative judges within the executive branch—a class of officials whose independence is central to their job. 

And Arthrex is no outlier. The clear takeaway from a handful of recent decisions is that the Supreme Court is now as committed to the idea of the unitary executive as it has been at any point in its history. This development would be significant at any point in time, but it is especially glaring given that it transpired during Trump’s presidency.

Trump would have already loomed large in this Court-sponsored expansion of presidential prerogative simply by virtue of having appointed Kavanaugh and Barrett (and Neil Gorsuch, who has also supported this drive). But what Phantoms of a Beleaguered Republic does so effectively is to demonstrate the opportunity presented by Trump, who made no secret of his desire to amass presidential power, for longtime proponents of the unitary executive. These supporters of presidential authority eagerly got onboard with Trump’s efforts to rid himself of administrative constraints and of executive officers who refused to do his bidding. What had been a primarily judicial and academic movement, cloaked in dense legal jargon and technicalities, quickly became a public spectacle, as Trump sought to bend the executive branch to his will. Trump and his supporters, the authors write, “pitted the chief executive against the executive branch, and they deployed the Constitution to dislodge anything within the president’s domain that limited his authority or conditioned responsiveness to his directives.” The president portrayed the deep state as part of an antidemocratic conspiracy, and when the state pushed back—by leaking damaging information to Congress and the press, publishing anonymous op-eds excoriating the president, and filing whistleblower complaints, for instance—the result was, well, a spectacle. The authors drive the point home in a particularly incisive passage:

The president’s insistence that he alone held the executive power of the American state drew out these forms of resistance. Tit for tat, he and the officers of the executive branch turned the Deep State conspiracy into something of a self-fulfilling prophecy. . . . [The resistance] turned on the value of depth, on the wisdom of stripping administration of its own integrity and operating the executive branch as a strong arm of presidential will. The clear-eyed choice is not between the Deep State and the unitary executive. It is whether we value what depth has to offer or not.

The merits of the two sides of this debate aside, the authors’ point is that for those who supported Trump’s expansion of the power of the chief executive, the unitary executive theory “is, if nothing else, an elaboration of newfound skepticism of the value of depth.” Proponents of the theory are unconvinced by expertise, mistrustful of nonpartisanship, and suspicious of everything that cannot be directly controlled by the chief executive. Fully applied, the theory therefore eliminates one of the critical checks that exist to prevent presidents from pushing the envelope too far. With the administrative state rendered an arm of the Oval Office, and other checks on presidential power, such as the courts and Congress, also not stepping up to the plate, the president ends up being accountable to virtually no one.

both sides now

Skowronek, Dearborn, and King don’t ignore the Supreme Court’s role in adjudicating on executive and administrative power, but they don’t feature it in the way that it merits, either. Trump is hardly the first president to push idiosyncratic theories of executive power. President George W. Bush, for instance, embraced what some scholars dubbed “the commander-in-chief override”—the idea that any statutory limits on the president’s national security powers were unconstitutional to the degree that they interfered with the president’s ill-defined authority as, in the Constitution’s words, “Commander-in-Chief of the Army and Navy of the United States.” The Supreme Court of that era implicitly rejected this theory in one especially high-profile dispute over the use of military commissions to try Guantánamo detainees. Today’s Supreme Court, by contrast, has reconfigured constitutional authority such that the president will have much more power going forward. Trump may doubt that the Court was on his side because it didn’t hand him the 2020 election, but it was, and is, very much on the side of the presidency as an institution.

As the authors note, the unitary executive theory “is a license to presidents to vent their instinctive hostility to depth, and we should expect that future presidents will use it as such.” Indeed, Biden already has. Shortly after the Supreme Court’s decision in June in Collins v. Yellen , which reinforced the 2020 ruling in Seila Law , Biden fired the Trump-appointed commissioner of the Social Security Administration without cause—even though the person in that position is protected from removal except in the event of neglect of duty or malfeasance in office. By way of explanation, the Justice Department’s Office of Legal Counsel, which is headed by progressives who, before joining the Biden administration, had been longtime academic critics of the unitary executive, released a memo arguing that the protection from being removed without cause was no longer constitutional after Seila Law and Collins . Apparently, if the unitary executive truly is ascendant, even Democrats want to reap the benefits. 

The Supreme Court is now dedicated to putting its thumb on the scale in favor of the presidency.

That is the trap against which Phantoms of a Beleaguered Republic ultimately rails. Embracing the unitary executive at the expense of the remaining checks within the executive branch “beckons us toward a strong state, hierarchically controlled by the president.” The authors explain that defenders of expansive presidential power reassure the wary “that this is how it was meant to be, that the framers envisioned a plebiscitary democracy in which every incumbent cuts deep, each truly an administration unto himself.” But as Davis warned 155 years ago in Ex parte Milligan , surveying a polarized political landscape strewn with the wreckage of the Civil War, therein lies the problem. 

The question then becomes how to restore the balance that characterized both the executive branch and the separation of powers throughout the century after Davis’s ruling. It seems unlikely that Congress will reassert itself, whether because one party is reluctant to check the power of its own president or because legislation that does try to bolster existing checks will be vetoed by presidents who have no incentive to give away their own power. With the separation of parties taking the place of the separation of powers, interbranch checks on presidential power have increasingly fallen away—leaving only intrabranch checks. It is also hard to be optimistic, given the polarized state of U.S. politics, that voters will simply eliminate the problem by electing presidents who decline to expand their own authority. That is why, by the end of Phantoms of a Beleaguered Republic , the Court appears equal parts culpable for the current state of affairs and the best hope for reform—not changes of the like currently being floated by progressives, who want to add seats to the Supreme Court, take away its power to decide certain cases, and so on, but reform that maintains a healthy balance between the chief executive and the administrative state, such as treating fewer officials as “principal” officers, who must be subject to the president’s absolute control, and expanding Congress’s power to insulate “inferior” officers from the Oval Office. As one of the Court’s most influential justices, Oliver Wendell Holmes, Jr., once said, the key is to accept that “certainty generally is illusion, and repose is not the destiny of man.” In other words, the hard line of the unitary executive theory, comforting as it may be to those who seek certainty in knowing where federal power lies, does not make it the wiser choice: rather, the United States is better off with tension between the Oval Office and its bureaucracy.

Trump laid bare the risks of the unitary executive, wielding expansive presidential power for personal gain with relative impunity. The Supreme Court has so far reacted as if what happened was because of who Trump was and is, not because of the powers of the office that he held—powers that exist and that he was able to benefit from thanks in part to the Court itself. The United States may simply have to hope that the Court will respond differently in the future, in defense of checks on presidential authority, if the country elects another Trump, because the alternative—a president unbounded by either external or internal checks—would be worse.

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• STEPHEN I. VLADECK is Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.
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The Heritage Foundation's Project 2025 wants to reshape America under Trump

The project outlines a series of moves to transform the executive branch of the government

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The 2024 presidential election is only three months away, and there appears to be a not-slim chance that former President Donald Trump could make his return to the White House. Trump is currently neck-and-neck in most polls with Vice President Kamala Harris , and the election is likely to come down to the wire. The former president has previously committed to being a " dictator on day one " if he were to gain power again. While there have been arguments over whether Trump's words are hyperbole or literal, there is at least one group apparently scheming to assist with these dictatorial tendencies — through a plan called Project 2025.

Project 2025, which has only recently begun to gain traction in the national news media, is the brainchild of a conservative think tank called the Heritage Foundation . The foundation is collaborating with at least 80 other conservative groups to spearhead an effort to "rescue the country from the grip of the radical left," with a "governing agenda and the right people in place, ready to carry this agenda out on day one of the next conservative administration," according to the Project 2025 website . 

Many in opposition to the plan have alleged that Project 2025 is part of a greater effort by conservatives to turn the United States into a Trump-led autocracy. What does Project 2025 entail, and why are some political scientists afraid of its effect on democracy? 

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What is Project 2025?

It is a "mission to dismantle the federal government and replace it with a vision closer to [Trump's] own," The Associated Press said, and is "essentially a government-in-waiting for the former president's return — or any candidate who aligns with their ideals." The full Project 2025 consists of a 920-page outline that mandates four doctrines to implement in the event of a conservative presidency: the first is to "restore the family as the centerpiece of American life and protect our children," the outline said. The second doctrine is to "dismantle the administrative state and return self-governance to the American people."

Third, Project 2025 would "defend our nation's sovereignty, borders , and bounty against global threats." And the last doctrine of the project is to "secure our God-given individual rights to live freely — what our Constitution calls 'the Blessings of Liberty.'" The main goal of these four tenets would be to execute a "sweeping expansion of presidential power over the machinery of government if voters return [Trump] to the White House in 2025," The New York Times said. The majority of the plan would be implemented during a transition period of 180 days that the project is calling its " playbook ."  

As the project's outline shows, this would involve the consolidation and retooling of dozens of federal agencies to place them fully under Trump's auspices. The project is mostly based on a legal principle called the unitary executive theory, which asserts that the president of the United States has complete power to control the executive branch of the government. The theory is an interpretation of Article II of the U.S. Constitution , which states that the country's executive power "shall be vested" in the president. 

Proponents of the unitary executive theory, including those in charge of Project 2025, argue that this vesting of power in Article II "gives the president complete control of the executive branch, so Congress cannot empower agency heads to make decisions or restrict the president's ability to fire them," the Times said. The theory is often a point of debate among scholars but has been championed by conservatives. The Reagan administration first developed the theory "as they sought to advance a deregulatory agenda."

The plan would also seek to fill the government with Trump loyalists by "scouring records and social media accounts to rule out heretics — effectively administering loyalty tests — and launching a so-called Presidential Administration Academy that tutors future MAGA bureaucrats," Politico said. This would ensure that "what remains of this slashed-down bureaucracy is reliably MAGA conservative — not just for the next president but for a long time to come — and that the White House maintains total control of it." 

Using these powers as a baseline, Project 2025 presents a " Christian nationalist vision of the United States, one in which married heterosexuality is the only valid form of sexual expression and identity; all pregnancies would be carried to term , even if that requires coercion or death; and transgender and gender-nonconforming people do not exist," The New Republic said. 

Who is behind Project 2025?

The project is mainly led by the aforementioned Heritage Foundation. Led by Kevin D. Roberts, the foundation is a think tank "based on the principles of free enterprise, limited government, individual freedom, traditional American values and a strong national defense," according to its website . The foundation has grown to become one of the most influential conservative groups in the country. 

Other people and groups involved with the project include like-minded right-wing think tanks and institutes, including individuals who once worked in the prior Trump administration. This includes Turning Point USA, a college-based nonprofit led by right-wing activist Charlie Kirk, as well as a conservative advocacy organization called the Center for Renewing America. Former Trump staffers involved with Project 2025 include former White House chief of staff Mark Meadows and Trump's former senior adviser Stephen Miller, the latter of whom has been described as a white nationalist. 

Overall, at least "140 people who worked in the Trump administration had a hand in Project 2025," according to CNN . This includes more than "half of the people listed as authors, editors and contributors" to the project's core manifesto. Trump's running mate, J.D. Vance, also wrote the forward to an upcoming book by Kevin D. Roberts that is described as the outline for a "peaceful 'Second American Revolution.'"

What have analysts said about Project 2025?

Many progressives have opined that Project 2025 is an effort to turn the country into an autocracy, with Trump and his MAGA movement at the top. "The right is intent on turning Trumpism into a governing agenda," Robert L. Borosage said for The Nation . The Heritage Foundation is looking to "recruit, train and plant MAGA operatives throughout the government, and arm them with clear marching orders." 

The priority of Project 2025 is to "bring the permanent bureaucracy to heel," Borosage said. The appointees in Trump's new government "will be driven not by Reagan's sunny 'morning in America' conservatism but by a dark QAnon vision of America betrayed," he added. However, there remains an unknown: whether Trump "would have the discipline to impose this agenda." Nevertheless, there is a "greater likelihood that if he regains office, his next administration will be far more organized, relentless and destructive than his first," said Borosage.

Project 2025 is a "dangerous political storm," Dick Hall said for The Oklahoman . The current discourse in the United States means that the government "is susceptible to converting our democracy to an authoritarian dictatorship," driven by "politicians' personal conduct and their disregard for ethics and established laws." The project itself is less a transition and "more like the 'The Radical Conservatives Machination,'" Hall said.

What has Trump said about Project 2025?

In the early days of the campaign, Trump made little mention of the project by name. However, Democrats, in particular the recently formed Harris campaign, have begun working to link Trump's official second term platform, Agenda 47, to Project 2025. And as New York magazine said, many of Trump's indicated plans for a second term fall in line with the Project 2025 outline. 

Despite this, Trump has "made clear he wants little to do with Project 2025," said CNN. Trump has "no idea who is behind it," the former president said of the project on social media, and has claimed not to know what the project is about. The effort to tie Trump to Project 2025 is part of a "lying and fear-mongering" campaign, Trump campaign spokesperson Danielle Alvarez said to CNN. 

It seems that efforts by the Democrats to garner recognition of Project 2025 are working; an Aug. 14 UMass-Amherst poll found that 53% of Americans, including two-thirds of Democrats, had heard of Project 2025. This is notable because Project 2025 "looks like an electoral liability, so it is no surprise that the Democratic Party has sought to link it with former President Trump and the GOP," said the director of the poll, UMass-Amherst political scientist Tatishe Nteta. Even "former Trump voters exhibit opposition to many" of Project 2025's policies, Nteta said. However, the Heritage Foundation maintains that Project 2025 is "candidate-agnostic, meaning its thousands of applicants could serve in any Republican administration," New York magazine said. In a statement to the outlet, the foundation said it was "proud to welcome conservatives of all different backgrounds and experiences." Amid ongoing controversy, the Heritage Foundation has also said it will end new policy work.

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 Justin Klawans has worked as a staff writer at The Week since 2022. He began his career covering local news before joining Newsweek as a breaking news reporter, where he wrote about politics, national and global affairs, business, crime, sports, film, television and other Hollywood news. Justin has also freelanced for outlets including Collider and United Press International.  

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Later a studio executive, he was among the last of the power brokers who dominated Hollywood in the latter half of the 20th century.

By Clay Risen

Jay Kanter, whose long career as an agent to the stars — including Marlon Brando, Marilyn Monroe and Grace Kelly — and later as a studio executive made him one of the last of the generation of power brokers who dominated Hollywood in the late 20th century, died on Aug. 6 at his home in Beverly Hills, Calif. He was 97.

His son Adam confirmed his death.

An acolyte of the superagent Lew Wasserman , Mr. Kanter was renowned as much for the career he led as for the stories people told about him.

He was a junior agent at MCA, Mr. Wasserman’s agency, in 1948 when he was asked to retrieve Mr. Brando from the train station.

Mr. Kanter took Mr. Brando to his aunt’s house, and the next morning to a meeting with the director Fred Zinnemann , who wanted to cast Mr. Brando in his next movie, “The Men.” Apparently Mr. Kanter made a good impression, because when he suggested that they proceed to MCA to meet some of its agents, he recalled, Mr. Brando replied: “I don’t have to meet anybody. You’re my agent.”

Mr. Brando’s Hollywood career was on the verge of stardom. And now, so was Mr. Kanter’s.

“Suddenly I was getting all these calls from these heads of studios,” he said in a 2017 interview , and within a few years he represented a long line of A-list talent.

The Kanter-Brando story became Hollywood lore, so much so that it provided the inspiration for a 1989 sitcom, “The Famous Teddy Z,” about a Hollywood star who picks out a mailroom clerk (played by Jon Cryer) as his agent.

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