A few weeks into Donald Trump’s second presidency, it is clear we will all have to think a lot about executive power in the next four years.
A few weeks into Donald Trump’s second presidency, it is clear we will all have to think a lot about executive power in the next four years. The new administration means to flex its muscles, and the results will raise some complicated questions.
To consider those clearly, we should remember an essential distinction. The president’s power should be understood in two different contexts: in relation to the executive branch over which he presides, and in relation to the larger constitutional system in which he plays a part. Donald Trump clearly wants to exert his authority over both, but the two are not the same.
A rough but useful rule of thumb would be that the president does command the executive branch but the executive branch does not command our government.
When it comes to the work of the executive branch, the president’s authority really is supreme. Article II of the Constitution begins with the stark pronouncement that “The executive Power shall be vested in a President of the United States of America.” That means the executive branch is essentially a single individual. Everyone else who exercises executive authority in our government does so on the president’s behalf, with his implicit or explicit authorization.
The Constitution doesn’t trust anyone with truly unrestrained power, so executive authority is purposely entangled with the other branches, and in marginal ways this even extends to the president’s command over his underlings. Congress can create executive agencies, though their employees work for the president. Appointments to senior executive offices have to be approved by the Senate, and their occupants can be impeached and removed by Congress. The courts can review the legal and constitutional validity of some of the president’s uses of his power over those who work for him. But ultimately, in the everyday practice of administration within the bounds of the laws, the president is in charge of the executive branch.
He is not, however, singularly in charge of the government as a whole. In relation to the larger constitutional system, the president’s role is constrained and is in many respects overshadowed by Congress. His core function is to take care that the laws Congress has passed are faithfully executed. So he is accountable to the law and bound by its strictures. The resources at his disposal are determined by Congress, which alone has the authority to set the levels of taxation, spending, and borrowing. Executive orders and administrative actions by the president can command the executive branch regarding how to carry out the law, but not regarding whether to do so, and they are reviewable by courts.
The extent of both these sets of presidential powers — over the executive branch and within the constitutional system — is always contested and ambiguous. But the Constitution leans toward an expansive understanding of the first and a constrained understanding of the second.
Today’s originalist Supreme Court does too. A majority of the justices tend toward a unitary conception of the executive branch, which treats the president as supreme within his domain, but toward limits on executive power in the interbranch struggle. That’s how the same Court, in the same term, can overturn Chevron deference (constraining the power of executive agencies to interpret the meanings of laws) while reinforcing executive privilege (guarding the freedom of the president to exercise his power as chief executive).
Seeing this difference should help us draw some distinctions regarding some early actions of the new administration. Generally speaking, the president has a lot of leeway for setting personnel policy, or deciding who will operate what computer system to facilitate Treasury payments. There are still legal limits on these things, and it’s possible for executive officials, even with the president’s permission, to act illegally in administering federal agencies, but the courts will not be quick to limit the president’s discretion to administer his own administration.
On the other hand, the president cannot unilaterally close down government agencies created by law. And it is not likely that the courts will allow him to refuse to spend money mandated by Congress.
None of these lines is entirely simple and clear. But in broad terms, if the argument you hear is that President Trump is not allowed to decide who does what in his administration, then you should be skeptical. But the argument that the administration can’t refuse to do what the law demands or can’t act where no legal authority exists is likely to prevail.
The second kind of argument cuts to the core of some of the new administration’s most aggressive ambitions. Some in the president’s circle are taken with the logic of progressive presidentialism, and would like to see the executive crowned the supreme power in our system. They insist, for instance, that the president can “impound” appropriated money — that is, refuse to spend public dollars authorized by Congress for purposes he deems unsuitable.
As William Rehnquist put it more than half a century ago, it is “extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.” It has only gotten more difficult since, because Congress in the meantime has passed a specific statute prohibiting such impoundment of funds while giving the president some mechanisms for requesting specific amendments to appropriations. People who think this Supreme Court is about to empower administrative agencies to make appropriations decisions on their own must have been looking at a different Court than I have over the last few years. To the extent the Trump administration’s ambitions require broad use of an impoundment power, I suspect they are likely to fail.
But they will not fail, and will not deserve to fail, in every struggle over executive power. The president wields the authority of the second branch of our government. Within its purview, he rightly dominates. Beyond it, his is just one ambition locked in an unending struggle with others. That struggle, by ensuring no one simply dominates, ensures that we remain free.