• United States

February 24, 2025, 12:01 AM View Comments ()

In the latest chapter of presidential power, U.S. President Donald Trump issued an executive order that broadened his authority over independent regulatory agencies that includes the Securities and Exchange Commission and the National Labor Relations Board. Some aspects of the Federal Reserve would also fall under the presidential umbrella. Despite Congress having designed these government bodies to remain free from White House oversight, Trump is expanding his reach. The agencies will be required to subject proposals for regulations to being reviewed by the White House. The Office of Management and Budget (OMB) will now be able to withhold money and “adjust” expenditures if they conflict with what the president wants. Just to add to the limitations, the Department of Justice and the president have final judgment about what is lawful.

If there are any genuine anti-government Republicans left, they should be shocked by what they are seeing. If any individual harbors fear about the dangers of excessive authority vested in the hands of federal officials, they are witnessing exactly what can happen as Trump tears through spending, the government workforce, national defense institutions, and international alliances with the brute force afforded to the modern presidency. Although President Ronald Reagan empowered the OMB to exercise similar oversight over federal agencies, he left the independent agencies alone. Despite the fact that he is fighting to cut government, Trump’s unilateral deployment of power—directly challenging the authority of the courts and Congress—epitomizes what big government looks like.

Our current constitutional crisis is not the story of a singular individual. In fact, it is the story of a Republican Party that is now willingly and enthusiastically giving Trump the green light to demonstrate to the nation what robust federal power can achieve. On Capitol Hill, the administration’s support is so strong that the GOP is willing to hand over even more legislative authority so that nothing stands as an impediment to the president’s desires.

How did this come to be? It’s been decades in the making.

Starting with Democratic President Franklin Roosevelt in the 1930s, the liberal embrace of presidential power throughout the 20th century was a natural fit. With the House and Senate dominated from the 1930s through the 1980s by a bipartisan coalition of conservative Southern Democrats and Midwesterners, liberals came to champion the notion that the nation needed a strong president who could navigate vital legislation through a difficult legislative process and a large executive branch capable of carrying out new areas of policy. Starting with the Korean War in 1950, liberal internationalists became comfortable with a vast national security state that was often freed from strong mechanisms of accountability and no longer expected a declaration of war when presidents wanted to send troops into combat overseas. Only with Vietnam and Watergate did some of these liberals wake up to the dangers of the “imperial presidency,” accepting the necessity of reforms that could curb executive power.

The marriage between Republicans and presidential power was not as inevitable. After all, the GOP has remained a party relatively committed to privileging markets and traditionally was skeptical that government officials, including the president, could be trusted. Before the 1970s, it was not uncommon for Republicans to criticize the growth of presidential power. Republicans joined conservative Democrats in railing against Roosevelt when he attempted to expand the size of the Supreme Court in 1937, comparing him to the dictators who were devastating Europe and Asia. Some Republicans, such as Ohio Senator Robert Taft, warned of a “garrison state” as President Harry Truman worked through a bipartisan coalition in the late 1940s to vastly built the Cold War national security apparatus of the executive branch. In 1959, one of the most influential conservative thinkers of the period, James Burnham, wrote that: “Legislative supremacy was thus not a novelty for the founding fathers, but a starting assumption. … [T]he primacy of the legislature in the intent of the Constitution is plain on the face of the document.”

Some of the fears of presidential power started to weaken during the 1950s when Republican President Dwight Eisenhower emerged as an extraordinarily popular figure in American public life. Many prominent Republicans had little to say when Eisenhower put forth claims of executive privilege to protect staffers and their data from anti-communists within his own party.

But the marriage between presidential power and Republican Party politics was fully consummated between 1969 and 1974 when President Richard Nixon was in the White House. Frustrated by the fact that he had to contend with a Democratic Congress, Nixon unleashed his authority without any sense of restraint. The president impounded billions of dollars of funds that Congress had appropriated; conducted secret military operations in Southeast Asia without congressional approval; and attempted to weaponize different parts of the executive branch, to be used against his opponents. Most dramatic of all, Nixon wielded presidential power to try to stop the New York Times and the Washington Post from publishing a leaked study from the Pentagon in 1971 that exposed the lies that had been used to justify the war in Vietnam, and then leaned on the CIA to halt an FBI investigation into the break-in at the Democratic Party headquarters in June 1972.

While the fallout from Watergate resulted in a series of reforms—such as the War Powers Resolution of 1973 and the Congressional Budget and Impoundment Control Act of 1974—that attempted to rein in presidential power, those efforts ultimately proved limited. Many of the Republicans working within President Gerald Ford’s administration, including chief of staff Dick Cheney, believed that the Watergate investigation had been a partisan hit job and that the problems with Nixon were about him rather than the institution. Indeed, Ford’s pardon of Nixon on Sept. 8, 1974, as Jeffrey Toobin recounts in his new book, The Pardon, was one of the most brazen uses of that power up until that time.

Most Republicans thereafter doubled down on a strong president. Reagan, a hero to the right, was essential. Between 1981 and 1989, Reagan dominated the national scene. In terms of his presence and ability to shape the national agenda, Reagan was a living embodiment of the influence that a president could have. But there was more. Reagan made extensive use of executive orders to roll back environmental regulations. He bolstered the authority of the OMB to control the way that agencies spent their funds. When Congress imposed restrictions on the president from aiding anti-communist forces in Central America, high-ranking officials in the National Security Council funneled resources to the war using money from arms sales to Iran, a terrorist state.

During the 1980s, Republicans offered a number of arguments in favor of presidential dominance. Conservative legal scholars argued that it was imperative for the president to be stronger since liberals who, in their minds, had jettisoned the nondelegation doctrine (Article I, Section 1) that vested the power over agencies within the legislative branch. There was a cohort of young lawyers in the Department of Justice under Attorney General Edwin Meese, many of whom were connected to a new organization called the Federalist Society, who promoted a theory of originalism—making judicial decisions based on the original understanding of the Constitution—and the “unitary executive,” which insisted that the president had complete control over the entire executive branch.

One of the greatest sources of frustration for the right was the Office of Independent Counsel, the product of a post-Watergate reform in 1978, that conservatives said was not accountable to anyone. Republicans also merged anti-government conservatism with presidential power by claiming that only the commander in chief had the capacity to overcome a perpetually Democratic Congress and entrenched bureaucracies in their battle to shrink government. This logic extended to foreign policy, where Republicans alleged that the Democratic Congress, still shellshocked from Vietnam, refused to take the steps necessary to combat communism.

The zealous embrace of presidential power was front and center in the minority report of the Iran-Contra committee, which had spent the summer of 1987 investigating the way that Reagan’s administration had circumvented the legislative restrictions on assistance to the Nicaraguan Contras. Rather than deny that the administration had done anything, the minority report—authored by their leader Cheney, then a representative from Wyoming—instead defended what was done. “Congress must recognize,” they said, “that an effective foreign policy requires, and the Constitution mandates, the President to be the country’s foreign policy leader.”

This ethos has guided Republicans through this day, though at points they of course objected to presidential power when Democrats were in the White House. President George H.W. Bush, remembered for his judiciousness and restraint, defended the authority of his office. His head of the Office of Legal Counsel (OLC), Bill Barr, started the term in 1989 issued memos advocating this position.

Notably, even when President Bill Clinton was in office, Republicans did not pull back. Yes, they attacked him for being too aggressive in using his power on issues like the environment, but they also stayed the course on the bigger questions. In 1999, the GOP joined Democrats in allowing the independent counsel law to expire in 1999. Back in law schools, the conservative legal minds who came of age in the 1980s continued to write and teach about unitary executive theory, with the Federalist Society blossoming into an organization that connected students, scholars, judges, and Republican senators.

President George W. Bush led the nation through one of the biggest boosts of presidential power that the nation had experienced since the early Cold War. Following the terrorist attacks on the U.S. with 9/11, Bush pushed forward a massive expansion of the national security apparatus to combat stateless terrorism.

The Authorization for Use of Military Force in 2001 extended vast wartime powers to the president. As vice president, Cheney was able to bring some of the ideas he expounded in the minority report into the highest levels of power. The OLC produced a series of memos justifying strong-armed executive power, without congressional restraint, to do what was necessary to keep the country safe. White House counsel Alberto Gonzales insisted that the commander in chief needed virtually unlimited power, unbound from congressional law or international treaties, to respond to the crisis.

In one of the infamous “torture memos” that justified the use of “enhanced interrogation,” John Yoo argued for OLC: “The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander. . . . [T]he structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive—which includes the conduct of warfare and the defense of the nation—unless expressly assigned to Congress, is vested in the President.”

Bush relied on signing statements as a means of circumventing the legislature. When the media revealed how executive authority had been used to institute programs that allowed for the torture of detained individuals (which they called “enhanced interrogation”), Bush did not back down. In 2007, Bush signed a directive that required every agency to create a regulatory office, which would be filled with political loyalists, to oversee any issues that impacted industry. Toward the end of Bush’s second term, Cheney said: “If you think about what Abraham Lincoln did during the Civil War, what FDR did during World War II, they went far beyond anything we’ve done in a global war on terror. But we have exercised, I think, the legitimate authority of the president under Article II of the Constitution as commander in chief in order to put in place policies and programs that have successfully defended the nation.”

Since Bush’s presidency, the Republican thirst for presidential power has never been quenched. During Trump’s first term, members of the GOP barely blinked when he flexed his muscle in ways that would have made Nixon blush, including in an effort to overturn the results of the 2020 presidential election. After he avoided being removed from office through the impeachment process or any legal punishment for what happened, Trump not only survived efforts to rein him in but returned to office emboldened.

As the United States finds itself in a moment when Trump and Republicans are loving presidential power, it should come as no surprise. This has been in the making for decades. Now there is a new radical legal theory of presidential power, that the New York Times recently reported on, which rests on the belief that the unitary executive theory is too tame. Vice President J.D. Vance has been a champion of this philosophy. They argue that even originalism does not go far enough. Through “post-originalism,” scholars can rest their robust claims of presidential power on theories about natural and divine law as well as Roman law.

Democrats have certainly been a big part of the story. They, too, have been willing to expand presidential authority under Clinton, Barack Obama, and Joe Biden in response to their frustrations of being unable to move issues through Congress. There has been a bipartisan agreement over delegating legislative authority in pursuit of party objectives. However, as some political scientists have argued, there has been an asymmetry in their use of this authority. As political scientists William Howell and Terry Moe wrote in 2023: “Because most of the administrative state is the embodiment of progressive values, presidents from the two parties respond to it very differently. Democratic presidents support it, so they tend to approach presidential power in ways compatible with the administrative state’s well-being, the laws that authorize and define it, and the continued pursuit of its many governmental missions. Republican presidents staunchly oppose it, looking upon it not just with skepticism but with outright contempt. And as their party has grown more conservative, they have laid claim to increasingly extreme powers intended not only to control but also to retrench and sabotage significant portions of the federal bureaucracy.”

The first few weeks of Trump 2.0 are an anniversary celebration of the Republican marriage to presidential power. Trump is just doing what many in the GOP had been dreaming about. And if anyone thinks there will be serious pushback from within the party anytime soon, they should remember the long history behind what is happening.