Listen to The Reconstruction Agenda from The UnPopulist in your favorite podcast app: Apple Podcasts | Spotify | Google Podcasts | RSS | YouTube

Andy Craig: Welcome to The Reconstruction Agenda, I’m Andy Craig.

Since the murders of Renee Good and Alex Pretti in Minneapolis, we have faced a largely unprecedented situation: lawless federal agencies, backed by the White House, coming into conflict with state laws. The same laws as apply to everyone else against murder, theft, assault, kidnapping. Under immense public pressure, state and local authorities are now having to grapple with the complicated constitutional issues with potentially prosecuting federal officers.

To break down this issue, we’re joined by , professor at the Georgetown University Law Center, where he is one of the nation’s leading scholars and commentators on the federal courts, constitutional law, and accountability for government misconduct. He also publishes the excellent blog One First, a wonderful source for analysis of the latest developments at the Supreme Court.

A transcript of today’s podcast appears below. It has been edited for flow and clarity.

Andy Craig: The Supremacy Clause makes federal law the supreme law of the land. How far does that carry in cases like we’ve seen recently with the shootings in Minneapolis, and all the controversies about what ICE and DHS have been up to when a federal officer is alleged to have violated ordinary state criminal law?

Steve Vladeck: So, there’s a series of Supreme Court cases going all the way back to 1890 where the court has found in the Supremacy Clause a sort of qualified immunity from liability for federal officers under state law. We haven’t had a lot of cases in the Supreme Court, but at least in the lower federal courts, the doctrine, the test that’s emerged, is that a federal officer is immune from liability under state law under the Supremacy Clause if they are being prosecuted or sued for conduct they were carrying out in the course of their federal duties. And if the conduct was both necessary to the carrying out of their federal duties and a reasonable application, a reasonable execution of those duties.

So, “necessary and reasonable” is really the standard that the lower federal courts have followed in these cases, which until recently have been pretty few and far between.

Craig: Well, what’s necessary and reasonable is a pretty amorphous standard.

One of the cases that comes to mind that people might have heard of is the Ruby Ridge standoff. A district attorney in Idaho tried to prosecute the FBI sniper who had killed Vicki Weaver and their infant son. The Ninth Circuit allowed that to move forward. But then it was dropped when a new D.A. was elected.

Vladeck: That’s right. It’s a good example of how both procedurally and substantively these cases have worked. So the first thing to say is, were a state to try to prosecute a federal officer, the officer would almost certainly remove that case from state court to federal court. And he or she would be allowed to do so. That changes who the judge is. It changes at least marginally who the jury pool would be. But it doesn’t actually change the law and it doesn’t change who the prosecutors are.

In the Ruby Ridge case, the local officials were doing the prosecution, not the federal government. That matters, among other things, because then there’s also no pardon power for the president to use in these cases.

Then what will happen is the officer will say, “Well, I can’t be prosecuted because I have this Supremacy Clause immunity.” And that issue will go up. It’ll be appealed one way or the other before the case can ever get to trial. And, as you say, in the Ruby Ridge case, the Ninth Circuit greenlit the prosecution only to have the case dropped on remand. That’s how these cases have run historically. It’s what I would expect if we saw a criminal prosecution arising out of what’s happened in Minneapolis.

Craig: I want to touch on that federal removal aspect because that’s not a constitutional matter. There’s a federal statute that does that.

Vladeck: That’s right. The statute goes way back to the mid-19th century. The idea is that federal officers, even if they are liable under state law, should still be allowed to have their litigation play out in federal court, if the litigations are rising out of conduct they engaged in while on the job. And if they have some kind of plausible federal defense.

Craig: In practice, is that a huge hurdle? I mean, state courts are generally seen as a little bit more fly-by-the-seat-of-your-pants in criminal cases. Is a federal judge hearing this case necessarily going to be more sympathetic, though, to an ICE agent?

Vladeck: I don’t think so. One of the things that is striking about how things have evolved historically is that, whereas in the 19th century the real concern was a sort of pervasive anti-federal sentiment on state court benches, today you would probably see more diversity. Diversity based upon what state we’re talking about, diversity based upon how those judges were selected—were they elected? were they appointed?—that varies state to state. So I think some of the reasons historically why Congress provided for this removal might be to some degree anachronistic.

But that cuts both ways. It also means that there really probably isn’t that much of a difference one way or the other on the immunity question, between having it litigated in a Minnesota state court and having it litigated in the federal district court in Minneapolis.

Craig: One of the things we’ve seen arising out of the shootings in Minneapolis is not just the question of a potential, eventual prosecution under state law, but also state officials, local prosecutors trying to obtain evidence that the federal government has—the car that Renee Good was in, the physical evidence related to these shootings. DHS basically scooped all that stuff up and ran off with it.

I feel like this is something that maybe comes up in more normal cases when, say, the states and the federal government are both trying to prosecute the same person—when there’s a mass shooter or something like that. How does that work in terms of when the state wants to get evidence that the federal government has? Can it compel the federal government to do that, in the way it could anybody else who has evidence the state wants to get?

Vladeck: The short answer is we’ve never had to get all the way to the limits of that question because, until recently, the norm was cooperation. The norm was that, whether out of professional courtesy or pooling resources or just political expediency, state and federal authorities, even if they weren’t always on the same page, worked together and shared information. They shared evidence, they provided access to whatever they each had in custody and in their possession.

In that respect, we’re in a bit of uncharted territory here because we really haven’t seen before visible examples of the federal government not just refusing to cooperate, but actually physically preventing local and state investigators from access to the crime scene, from access to some of the witnesses.

That’s where we run into this question of what’s known in the courts as the Tuohy process—the idea where, eventually, maybe local and state prosecutors can get a court to order the federal government to cooperate. But it takes time. And one of the things we’re seeing in Congress right now is an effort to actually speed this up by statute, and try to make it so that it’s harder in the future for any federal government to drag its heels in a case like this.

Craig: We’ve talked about this most prominently in the case of a potential homicide or murder prosecution. But in general, states have lots of criminal laws. With what ICE has been doing, there’s a lot of arguable cases of assault, unjustified use of force, the tear gas, all that sort of stuff. Is the legal analysis there pretty much the same, and it’s just a question of the political will is more there when somebody’s dead?

Vladeck: One hundred percent. The Supremacy Clause immunity question is no different in the case of assault than it would be in the case of murder. I think it’s just the politics are different—that, for whatever reason, states are reluctant and recalcitrant to sort of poke the bear and bring these cases. But when you have what happened with Renee Good and when you have what happened with Alex Pretti, the politics really do become very one-sided in favor of pursuing whatever legal avenues are least potentially available.

Craig: So, one thing you mentioned that is certainly part of why this is getting a lot of attention is that Donald Trump can’t pardon them for state crimes. This has come up also recently in Colorado with the case of the election administrator who tampered with the machines because she was pushing conspiracy theories and is currently in state prison. He’s been leaning heavily on pressuring Gov. Jared Polis to try to get him to pardon her.

In one of these cases, you’re an ICE agent or an FBI agent or whatever, you’re the criminal defendant. That’s in your personal capacity. Does the federal government, the Department of Justice, have an actual procedural role to play in that case? Do they come in and act as your defense attorney, in effect? Or do they have any legal tools to directly intervene in the proceedings?

Vladeck: Not to directly intervene. I mean, again, we don’t have a lot of historical precedent here. But the short answer is the Department of Justice is not a criminal defense operation. And so were we to have one of these cases, I don’t doubt for a moment that the officers in question would hire private outside lawyers.

Now, DOJ might help. I mean, it’s not hard for me to imagine DOJ providing access to the officer’s lawyers to whatever they have in their possession. It’s not hard for me to imagine DOJ participating as a friend of the court in one of these cases, and filing briefs that are trying to be sympathetic to the officer’s position.

That has not been the norm historically. Historically, when states have prosecuted federal agents, the Justice Department has largely stayed out of it. But this is a DOJ that doesn’t stay out of things. I think it wouldn’t surprise me at all if we saw some pretty unprecedented involvement in such a case by this Justice Department.

Craig: And one of the things that’s been going on with that is both DOJ and DHS have pretty much preemptively announced, “We’re not even seriously investigating.” Certainly there’s no expectation that there’s going to be any serious consideration of a federal prosecution in any of these cases. Is that something that a potential defendant could point to and say, “Well, look, the federal government looked at this and said there wasn’t a case.” Is that going to be persuasive? Is that something that might kind of cut in their favor?

Vladeck: I don’t know that it makes that big of a deal with the jury or with the trial judge. Optically, I don’t doubt that that will be part of the story. It wouldn’t even surprise me if we saw some kind of ginned up non-prosecution memo from DOJ about why they weren’t prosecuting that would magically make its way into the hands of these defendants if these cases go that far. But the legal questions for the judge and the factual questions for the jury really are not going to turn on a discretionary decision to not prosecute by the Department of Justice.

The question’s going to be: Does the defendant officer have Supremacy Clause immunity? That will be up to the judge. And then, if not, what are the actual questions put to the jury about whether the officer acted reasonably, about whether he was under threat, about whether the force was disproportionate? DOJ not prosecuting is not going to affect the answers to those questions anywhere except maybe the court of public opinion. And even there I don’t know.

It really does seem to me that DOJ has shredded so much of its credibility over the last 12 ½ months, that the only folks that’s going to persuade are those who think that nothing wrong happened in the first place

Craig: When these cases are being brought, the standard you mentioned is that a case like this has to have been necessary and reasonable. Now, obviously, when they’re in the course and scope of their duties as law enforcement officers, they inherently have to use force. That’s kind of what they’re there to do, even legitimately when they’re doing their job. They have to arrest people. They’re using the coercive power of the government. To what degree do the relevant state laws, or also the federal doctrine, police that boundary between what was, beyond a reasonable doubt, unreasonable?

Vladeck: So, there’s a fair amount of case law under the Fourth Amendment because you often see claims for excessive force against law enforcement officers—where the claim is that the excessive force was not just a tort, but was actually a violation of the Fourth Amendment because it was an unreasonable search or seizure, usually a seizure. I would expect in one of these cases for the Supreme Court’s excessive force jurisprudence to play some role here. The officer will say, “Under the court’s jurisprudence, I was allowed to exercise this amount of force.”

This is why, though, for example, I think the Alex Pretti case might be more compelling. They’re both compelling, but it’s a more legally difficult battle for the officer to wage on immunity than the Renee Good case. Because in the Good case, you at least have the specter of the threat posed by a moving car. Folks have seen the video, and everyone’s going to say, “Well, but the officer put himself in harm’s way, and the shot that actually killed her was probably fired when the car was already passed him.” Those are all true. But I think that’s the sort of question, that’s the kind of debate, that will present itself on the excessive force issue, if there’s a prosecution of the folks who shot and killed Renee Good, that I’m not sure we would see in the Pretti case.

In the Pretti case, the video is so unambiguously clear that he had been disarmed and that he was being restrained on the ground before any shots were fired. But I think that’s how that analysis would probably unfold if we get that far.

Craig: One consideration is eventually this administration won’t be in power anymore. There are lots of federal laws that could potentially apply here. Things like deprivation of rights, and just the applicable federal homicide statutes when they have the necessary hook, which I assume they would here. Is that right that a federal prosecution would, in theory, be able to cover and reach simple homicide?

Vladeck: Maybe. The problem is that Congress doesn’t have general regulatory authority over America. These shootings did not happen on federal property. I think the state prosecutions are the far more easy answer here. There are certainly some federal charges that would be available.

I think the murder question’s a little harder because of the narrowness of the federal homicide statute. But if a future president wanted to throw the book at these folks, I think he or she could find ways to do so. Of course, then the problem is that President Trump might pardon them. And a pardon cannot wipe the slate clean for state criminal prosecutions. It could, and indeed would, for any future federal prosecutions.

Craig: And that would be preemptive because, as we’ve seen, presidents don’t have to wait until somebody is convicted or even charged before swooping in with a pardon.

Vladeck: Indeed, and unlike some of the other controversies surrounding President Trump’s efforts to use the pardon power, here at least he’d be pardoning stuff that already happened. So it would be preemptive in the sense that it would be before the charges were brought, but at least it would be pardoning conduct that already took place as opposed to a get-out-of-jail-free card.

Craig: One of the other angles that’s come up on this is ... I mentioned charges other than murder. And obviously the two shootings in Minneapolis are front and center. But there’s been a lot of interest in reporting what’s going on in ICE custody in these immigration detention centers in terms of inhumane treatment or worse. This has been the whole fight with members of Congress trying to get in there to conduct oversight. If the states have applicable laws for that kind of scenario in terms of assault, or torture potentially, would the necessary and reasonable analysis be more difficult there—because inherently you’re detaining somebody, you’re in a federal institution, you’re in federal custody—or is it possible that those circumstances could rise to the level of state crimes?

Vladeck: The short answer is both. I think it’s obviously possible that especially egregious behavior in those detention facilities could rise to the level of assault under state law, could rise to the level of other crimes under state law. But yes, if you start from the proposition that the government has the legal authority to detain at least some of these folks and that detention implies depriving them of their liberty, I think you’re starting with a heavy thumb on the scale against a criminal prosecution.

What this really all gets to, and the ambiguities that would be inherent in even a criminal prosecution in the Good and Pretti cases, is that what’s really missing here is a robust federal damages regime. That would go such a long way toward not needing states to be the line of last defense here. It would go a long way toward creating more of the kinds of deterrent that everyone would be invested in, that federal officers should be incentivized to not violate our constitutional rights.

That’s why part of what I find so frustrating is that there are a lot of folks who have been pointing out for 10, 15, 20 years now that between Congress not providing such a remedy by statute, and the Supreme Court really taking a whole bunch of bites out of the judge-made remedy called Bivens that had been in place since the 1970s, that we’ve lived in a time, for most of the last few decades, where there’s no meaningful damages remedy when federal officers violate our constitutional rights. And I think what’s happening with ICE, whether in Minnesota or in Illinois or in Texas or everywhere, is the best evidence we should ever need for why that kind of remedial scheme is long overdue.

Craig: That is Section 1983. So, there’s the federal law that allows you to sue state and local officials. If a local cop violates your rights, you can go into federal court. There has been some talk recently in Congress of extending that to include federal officers by simply inserting the words “or the United States” in that statute. But unpack a little bit what the Supreme Court did with Bivens and how that has gotten narrowed down to the point where it’s effectively impossible for you to go sue, civilly, federal officers and agents for violating your rights.

Vladeck: The model for most of American history was that if you wanted to sue a federal officer, you would actually bring a state tort claim. For example, if an officer busted into your house without a warrant, you would bring a trespass claim. The officer would say, “You can’t sue me in trespass, I’m a federal officer.” The response would be, “You have no federal defense because you violated my constitutional rights.” By the 1960s, it had become pretty clear that that was not an adequate remedy.

First, you had all these immunity questions, very much like the ones we’ve just been talking about. Second, you also had the Supreme Court recognizing a whole bunch of new constitutional rights that didn’t have great tort analogs. So trespass works pretty well for the Fourth Amendment, but what about equal protection? And what about free speech? Those don’t have great tort claims at the bottom of them. So the Supreme Court in 1971, in this case called Bivens, say there are going to be some circumstances where federal courts can just provide damages directly, where the victim of a violation of the federal Constitution can walk into a federal court and sue directly under whatever provision was violated.

In Bivens, it was the Fourth Amendment. This was not that controversial at the time. It was widely followed for about 10 to 15 years. And it actually opened up the door to lots of opportunities to hold federal officers liable when they violated the Constitution.

They would still be entitled to qualified immunity, to official immunity. So the violations would have to be egregious for the plaintiff to actually collect. But Bivens at least provided what the lawyers would call a cause of action. Bivens opened the courthouse doors.

Starting in the mid-1980s, but really accelerating in the 2000s, the Supreme Court started retrenching Bivens—finding new excuses to not extend it into new contexts, and then increasingly even taking it away from the context in which it had been recognized. I actually argued one of the more recent Bivens cases; I represented the petitioner in Hernandez v. Mesa, which was a case the court heard in 2019 about the fatal cross-border shooting by a Border Patrol agent of a 15-year-old unarmed Mexican national.

We argued in that case, if his parents can’t sue the officer for violating his rights, assuming his rights were violated, they have no remedy. And there’d be no deterrent for Border Patrol to use excessive force all up and down the border. In a 5-4 ruling, the Supreme Court still said, “Well, no remedy.” That’s where we are. If anything, there’s been two decisions by the Supreme Court since then that have made Bivens even narrower.

So the result is that it’s not like we’re just back to the pre-1970 regime where we’re relying on state tort law. While all that was happening, Congress actually made those state tort claims harder to bring. We are in a moment today where it is harder to sue federal officers for violating our constitutional rights than it’s been at any point in American history. Congress’s refusal to deal with that was a big problem in 2020 in the middle of the George Floyd protests, but of course all that political energy fell away. Now it’s really rearing its head as a huge gap in our legal system.

Craig: That touches on the Supreme Court, which is central to your beat. You mentioned there haven’t been a lot of these criminal cases involving the Supremacy Clause analysis that have reached the Supreme Court, but things have not gone terribly well on the civil accountability side. I know it’s always dangerous to read the tea leaves at the Supreme Court. But do you have any thoughts on, is it likely that this bounces up to the Supreme Court if there’s one of these prosecutions, and how is the Court going to look at that? Or is it possible that they’re going to say: “This law is pretty well-settled—we have all these circuit court precedents, go play it out”?

Vladeck: This is not a Supreme Court that is shy. So whenever the question is, “Do I think the Supreme Court would step in to fill-in-the-blank?”, my answer is almost always yes. But especially a question like this. It’s hard to imagine, if one of these prosecutions is brought, that there wouldn’t be a concerted effort to have the Supreme Court step in pretty early.

One caveat is that Minnesota happens to be in what is really one of the most conservative federal appeals courts in the country, the Eighth Circuit, which is headquartered in St. Louis, but which also covers Minneapolis, St. Paul, the whole state of Minnesota. So it’s very possible that you could see a district court denying a motion to dismiss, saying, “Yes, this prosecution can go forward.” And then the federal appeals court saying, “Actually, no, it can’t.” At which point it would be the state asking the Supreme Court to step in as opposed to the federal officer.

I still think, whoever it is, whether it’s the officer asking the court to stop the prosecution or the state asking the court to revive it, that it would be very hard for the Supreme Court to stay out of that. As for what happens then, it is really hard to say.

This is a court that is very, very sympathetic to the executive branch in ways that I think are deeply problematic and I’ve written about ad nauseam. On the flip side, this is also a court that, at least at various points, has claimed to care deeply about federalism and about the historical structural role that states did and could play in holding the federal government accountable. It’s interesting to wonder if someone like Justice Neil Gorsuch, who really claims to be an originalist, would actually find a bit of tension between what might be sympathy to the executive branch in these cases and a real belief that states have a role to play.

That’s why I think it would be very hard to handicap. A lot would depend on how the case got to the court, how strong the evidence was and, what, if any, findings the district court had made in denying immunity. Against that backdrop, I think that will have a lot to say about what this court would do.

Craig: And it does relate to the kind of scrambled politics of the situation because, historically, certainly for justices like Gorsuch, this is kind of a federalist, states’ rights, 10th Amendment thing. That’s all very conservative coded usually. And federal supremacy in most historical cases has been something more on the progressive end. So you kind of have a little bit of an inversion of that in both directions.

Is there a concern, particularly if you’re district attorney in Minneapolis or Philadelphia or any of these places that have been talking about of pushing in this direction, that there might be a kind of turnabout when there’s a future Democratic administration and Texas wants to prosecute a federal agent enforcing civil rights? I mean, who knows what circumstance might arise, but you can imagine the political valence being reversed. Is that something we have to be cautious of?

Vladeck: Cautious, I think, is the right word. Yes, we should always be mindful that what’s good for the goose is good for the gander. It’s right for folks to be a little cautious about just throwing open the door to state liability. This is part of why I really think the better solution in the long term is a comprehensive, robust federal remedial scheme, both on the damages and on the criminal side.

But I also think that the test for Supremacy Clause immunity, assuming it doesn’t get changed, during this litigation is one that we should be able to live with regardless of our politics. That a federal officer who is violating state law because those violations are necessary to carry out their duties, whether it’s to enforce a court order in a 1960s era desegregation case, or otherwise carry out federal law, is going to win that case. And that’s as it should be.

We’ve already seen efforts by red and blue states alike to push the envelope and the courts sometimes letting them and sometimes not. I guess I’m saying this is one of those contexts where I’m not as worried about the flip side, because if there really were federal officers in the future Democratic administration who were routinely violating state criminal statutes without justification, fine. Let the states prosecute them.

The case I brought, the Bivens case, Hernandez v. Mesa, the facts of that case came during the Obama administration. And so I think we should all be comfortable with the idea that there should be robust remedies for the federal government violating the Constitution no matter who’s in the White House when it happens.

Craig: You spoke a little bit about the statutory fixes for Bivens and civil litigation. Obviously, there’s a pretty good chance that there’s going to be a flip in Congress in terms of party control and that at some point down the line there’ll be a Democratic trifecta. On the criminal side, you mentioned that there’s this federal removal statute. But are there any other statutory things Congress could do to clarify, in both directions, when it is permissible and when it’s not?

Because, for the most part now, we’re flying on judicial rulings and precedents based on this one sentence in the Constitution. Are there any statutory reforms in that vein that could be worth pursuing?

Vladeck: I think Congress certainly could try to give content to Supremacy Clause immunity. Congress can’t change the meaning of the Constitution, but there are lots of examples of Congress fleshing it out in ways that courts have relied upon. So that could be one, but I think it’s probably also more on the procedural front.

I think Congress can and should create a procedure for more effective information sharing between state and federal prosecutors in these cases. I think Congress could and should make it clear that state criminal laws generally do apply to federal officers when they’re in this course and scope of their duties. The Supreme Court has said that anyway, but Congress could say they agree.

There are lots of things I think around the margins Congress could do to make these cases more viable when they ought to be viable. But I still think, and I realize I’m a broken record, that the biggest thing Congress can do to reduce the incidence of these cases is to provide other meaningful accountability mechanisms. Both so that there are easier ways to hold officers accountable when they break the law, and so that there are more powerful incentives existing on the front end that will actually hopefully lead them to think twice before doing so.

Craig: When we’re looking at that civil liability and accountability damages regime, obviously there’s the cause of action problem, which is kind of the biggest one. But are there other procedural steps? I have in mind … there’s been a lot of push for anti-SLAPP laws in the First Amendment context, including for a federal anti-SLAPP law, regarding defamation. That has a lot of kind of procedural tricks in it to make it easier for people vindicating their rights. Are there things like that, aside from just establishing that there’s not sovereign immunity here?

Vladeck: There are a lot of things. The question is how much political capital is there in Congress to really do this? So a statute could, among other things, lower the pleading threshold that the Supreme Court has articulated in the Twombly and Iqbal cases, so that you don’t have to prove your case at the pleading stage. A statute could provide for attorney’s fees if you succeed in your claim, which is what’s already true for [Section] 1983, but not true for a lot of other federal statutes. The statute could tweak qualified immunity to make it harder for officers to actually have immunity in cases in which it’s hard to defend their conduct objectively.

So, if the question is what’s my wish list, it’s a long list. But my real concern is the perfect being the enemy of the good here. And if there’s only enough political capital to do one thing, I think it has to be a cause of action first.

Craig: That makes a lot of sense. Thanks for joining us. Here at The UnPopulist we’ll continue to cover this, because there can be no meaningful reconstruction without accountability. Be sure to subscribe, and we’ll see you next time.

© The UnPopulist, 2026

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

As the U.S. Supreme Court rolls back long-standing constitutional protections, advocates are increasingly looking to state courts and constitutions to protect civil rights and liberties.

The shift toward state constitutions as sources of expanded rights crosses ideological lines and issues, from abortion to criminal sentencing to property rights. It reflects a basic, often overlooked, truth about our system of government: States can provide more expansive protections for individual rights and liberties than the federal Constitution.

Bringing a state constitutional claim, then, is like taking “second shot” when “you can’t win under the federal Constitution,” as federal Judge Jeffrey Sutton put it in November at a symposium organized by the Brennan Center for Justice and the Northwestern Law Review.

What’s more, state court decisions that rest on an “adequate and independent state ground”—rulings that are not dependent on federal law interpretation—are generally insulated from U.S. Supreme Court review. In other words, when state courts interpret and apply federal law, their decisions can be appealed to federal court. But “[a] state court’s view on issues of state law is, of course, binding on the federal courts,” Justice Sandra Day O’Connor wrote in 1984. That includes interpretations of state constitutions that offer broader rights than those available under the federal counterpart.

As a result of this constitutional federalism, state courts, drawing on their respective state constitutions, are increasingly emerging as an avenue for advocates who care about securing protections for individual rights and democracy, independent of anything the Supreme Court might do.

A Response to Federal Retrenchment

On April 22, 2021, the U.S. Supreme Court signaled it was done extending limitations on excessive juvenile sentencing when it declared in Jones v. Mississippi that a judge could sentence a child to life without parole without first finding the child was incapable for rehabilitation. Brett Jones—barely 15 years old when sentenced to die in prison for killing his grandfather during an argument—was a client of the MacArthur Justice Center, where I worked as an appellate attorney. My then-colleague, David Shapiro, argued Jones’s case before the Court.

In the decade or so before Jones, the Court had issued several decisions limiting excessive sentences for minors. In 2016’s Montgomery v. Louisiana, the Supreme Court ruled that life without parole was constitutionally available for only “the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility”—or an incapacity to change. But Montgomery and related cases left open an important question, Shapiro explained in a Harvard Law Review article: “If only permanently incorrigible juveniles can be sentenced to life without parole, then how can a sentencing judge lawfully impose such a sentence without actually deciding if the juvenile before the court is permanently incorrigible?”

However, by the time Shapiro stood before the Court to argue for a “modest extension” of Montgomery, requiring a finding of permanent incorrigibility before handing down a life-without-parole sentence to a juvenile, Justices Anthony Kennedy and Ruth Bader Ginsburg, who had consistently favored expanded sentencing protections for children, were both gone. The Jones loss signaled that the Eighth Amendment’s bar on cruel and unusual punishments did not include meaningful protections for children facing the harshest possible prison sentences.

But in response to this defeat, a new strategy flourished: turning to state courts and making state constitutional arguments to protect rights, even if the Supreme Court refused to do so under the federal Constitution.

Shapiro and our colleague Monet Gonnerman published their reflections on Jones in an essay entitled, “To the States.” Sure enough, since Jones, multiple state high courts have announced that their state constitutions provide broader sentencing protections for children. Most significantly, in 2024’s Commonwealth v. Mattis, Massachusetts’s high court barred all life without parole sentences for anyone under 21—without exception. Iowa, Michigan, New Jersey, and Washington’s supreme courts, among others, have also expanded sentencing protections for minors beyond the federal floor.

A Movement Supercharged

At around the same time as the Jones decision, the Brennan Center launched State Court Report, a non-partisan publication focused on news and commentary about state courts and constitutions. The Brennan Center has also filed friend-of-the-court briefs encouraging state constitutional interpretations independent of federal case law; brought together judges, scholars, and practitioners at symposia to discuss the role and importance of state constitutions; and conducted research about spending in judicial elections, legislative assaults on state courts, and diversity on state judiciaries. Organizations like the American Civil Liberties Union and the Institute for Justice have shifted focus to state supreme courts, and new organizations have popped up to focus exclusively on state courts and constitutions.

The emerging movement around state courts and constitutions gained speed after the U.S. Supreme Court in 2022’s Dobbs v. Jackson Women’s Health Organization declared there was no federal constitutional right to abortion, overturning decades of precedent. The decision also raised questions about the future of other rights rooted in substantive due process, such as contraception and same-sex marriage.

Dobbs triggered an explosion of state constitutional litigation around reproductive rights. To date, 12 state supreme courts have recognized at least some constitutional protections for abortion. At the same time, supreme courts in five states have held there is no right to an abortion in their constitutions. Some courts have raised the specter of “fetal personhood”—a doctrine that would not just allow but likely require prohibition of abortion, further curtailing reproductive freedom in the name of fetal protections. This demonstrates that robust state constitutional protections don’t necessarily favor those on any particular side of an issue.

State constitutional litigation over abortion restrictions is ongoing in another dozen or so states. Additionally, as of 2024, citizens of 10 states have voted to add amendments to their state constitutions protecting abortion, including in Arizona, California, Maryland, Michigan, Missouri, Montana, Colorado, Nevada, New York, Ohio, and Vermont.

State constitutional abortion litigation invokes a range of diverse constitutional rights and provisions, including privacy, bodily integrity, equality, healthcare freedom, and even religious liberties. This array of theories underscores the creativity of advocates and the breadth of constitutional protections across the states. It has also exposed the dangers of lowering the federal floor: The country is now a patchwork of rights, with freedoms depending on geography and conflicts erupting about which states’ laws should apply to inter-state disputes related to abortion care.

Voting Rights, Ballot Measures, and Gerrymandering

Given the midterm elections this year, a substantial portion of upcoming state constitutional litigation is likely to center on democracy-related provisions. Almost every state constitution explicitly protects the right to vote. State courts are frequently called upon to apply these provisions to determine the constitutionality of laws governing when and how people cast ballots—especially in the run-up to an election.

About half the states allow for some form of direct democracy, or citizen-initiated referenda on proposed constitutional amendments and statutes. State courts play a significant role in determining whether proposed amendments will appear on a ballot, adjudicating disputes like whether signatures were properly collected or initiative language is misleading. In January, for example, the Montana Supreme Court rejected a proposed initiative for the 2026 ballot that would have added to the state constitution a provision combatting corporate political spending.

The U.S. Supreme Court’s 2019 decision in Rucho v. Common Cause, which held that the federal Constitution cannot be used to challenge partisan gerrymandering, shifted such claims to state courts, where voters say the maps run afoul of state provisions guaranteeing partisan fairness, contiguous districts, equal protection, and more. State courts have diverged on these claims, with some states striking down maps, others upholding them, and still others ruling that gerrymandering cannot be challenged under their constitutions.

Multiple gerrymandering suits are pending. Last year’s unprecedented wave of mid-decade redistricting, for example, triggered lawsuits in Missouri arguing that the state constitution prohibits mid-decade redistricting and that the resulting maps are unconstitutional.

Unique Rights

Much significant state constitutional development has centered on state clauses explicitly protecting rights not found in the federal Constitution. For example, every state constitution requires the creation and maintenance of public education. While fights over what entails an adequate public education have raged for decades, battles over whether the requirement that states provide a “common” or “free” education precludes the use of public funds to non-public schools are a new frontier. School choice advocates have won in some states, like West Virginia, but lost in others, like South Carolina.

Even state clauses mirroring the U.S. Constitution can be interpreted to protect unique rights. For example, the Georgia Supreme Court in 2023 struck down a law requiring lactation consultants to obtain occupational licenses, finding it violated the state’s due process guarantees. The decision gave Georgians the right “to pursue a lawful occupation of their choosing free from unreasonable government interference.” The U.S. Supreme Court, meanwhile, has long rejected arguments that the 14th Amendment’s due process clause protects economic liberty.

Uneven Progress and Ongoing Challenges

Despite this surge of activity, state constitutional rights remain unevenly developed and, in some areas, unrealized. The heavy criminal and civil caseloads of many state courts leave little possibility for in-depth constitutional analysis. As a result, many state courts continue to interpret their constitutions in lockstep with federal law, rarely diverging in substance or reasoning. These courts are both leaving rights on the table and outsourcing their role in deciding matters of state law.

Another barrier to state constitutional development is a lack of private causes of action for state constitutional violations. When a state actor violates someone’s federal constitutional rights, a federal statute known as Section 1983 lets the victim sue the perpetrator. “Section 1983 suits account for a significant part of the workload of federal courts,” Erwin Chemerinsky and Burt Neuborne recently wrote in The New York Times.

But most state legislatures have not passed laws authorizing private suits by people whose state constitutional rights have been violated by state or local officials. Similarly, people whose state and federal constitutional rights have been violated by federal officials—say, the families of Alexander Pretti or Renee Good, who were killed last month by an Immigration and Customs Enforcement agent—are generally unable to bring civil suits against violators, because Section 1983 concerns only violations by state and local officials (as and recently explained in The UnPopulist). Lawmakers in multiple states are trying to fill that gap by introducing state laws that provide a private cause of action against federal officials for violations of federal constitutional rights, referred to as “Converse 1983s.” There are strong arguments that using state law that way is constitutional.

In an age of federal civil rights retrenchment, the need to cultivate a robust state constitutionalism is urgent. The future of our rights and liberties may depend on how state courts, and the lawyers who practice before them, meet this moment.

© The UnPopulist, 2026

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

A foundational element of our legal system is that our courts recognize, as Chief Justice John Marshall wrote in Marbury v. Madison, that “where there is a legal right, there is also a legal remedy ... whenever that right is invaded.” This legal principle was supposed to ensure, among other things, that individuals could fight back, receive compensation, and discourage government abuses whenever a government agent or agency had violated their rights.

As profound as Marshall’s words sound on paper, today they ring hollow for victims of constitutional abuses and other wrongdoing by employees of the federal government. Consider the shooting deaths of Renee Good and Alex Pretti in Minneapolis at the hands of immigration enforcement agents. Even if thorough investigations show the agents to have been at fault, any lawsuits by Good’s or Pretti’s families against the agents or the government they work for will likely underscore a depressing reality: Congress and our courts have made it virtually impossible for Americans to hold federal officials and agencies legally responsible for harms they cause through negligence or abuse of power.

In fact, state and local government officials are more vulnerable to citizens’ lawsuits, despite enjoying dubiously broad immunity from those suits. These officials are also more vulnerable to criminal prosecutions. When George Floyd was killed by Minneapolis policeman Derek Chauvin, for example, the Minnesota Attorney General’s Office quickly and successfully brought charges against him. The same attorney general’s office, however, would have a much harder time bringing charges against Jonathan Ross, the immigration agent who shot Renee Good, because the U.S. Constitution’s “supremacy clause” typically shields federal officials from being prosecuted under state law. President Donald Trump’s attorney general also seems unlikely to bring charges against the agents enforcing the president’s own immigrant policies—a conflict of interest that would occur to some extent under any president.

Indeed, concerns about holding federal officers legally accountable have become more pressing as federal immigration agents pursue the White House’s 3,000-person-a-day arrest quotas and repeatedly assault both Americans and immigrants in the process. It’s thus vital to understand the decay in our system of legal accountability for federal officials and to reverse it before trust between the federal government and its citizens breaks down completely.

One way to restore trust would be to remove the barriers to individuals’ ability to receive compensation in court for unjust harms inflicted on them by those agents. (Although rolling back obstacles to criminal prosecutions of federal agents is extremely important as well, we don’t delve into that remedy here.)

Keys That Don’t Open the Courthouse Door

Individuals seeking accountability in the courts for wrongful acts by federal officers face serious challenges. Under current law, they are, in effect, trying to unlock the courthouse door with one of four different legal keys that are either broken or don’t fit.

The first two of these keys are supposed to open the door to suits seeking compensation from federal employees or agencies for violations of “tort” laws—i.e., laws to remedy injuries from someone else’s negligent or intentional acts. The other two keys are supposed to open the courthouse doors for violations of people’s rights under the Unites States Constitution. Note that constitutional violations frequently overlap with tort law—for example, an excessive use of force under the Fourth Amendment may also amount to the tort of “battery.” With that said, let’s look at each possible key in turn.

The Toothless FTCA Key

The first is the “FTCA key.” It’s molded from the Federal Tort Claims Act, which Congress first passed in 1946 in the wake of a U.S. military plane’s flying into the Empire State Building. Under the FTCA, plaintiffs can sue the federal government for torts committed by federal employees, and the case is tried under the tort laws of the state where the violation occurred.

In its early years, the FTCA did give victims of federal harms useful ways to seek compensation in court. Today, by contrast, the federal courts’ interpretation has led to the act’s various exceptions swallowing the rule.

For example, one exception that Congress included in the FTCA precluded lawsuits against federal employees who’d been engaged in “the exercise or performance [of] … a discretionary function or duty” required by their agency or supervisor. This provision was meant to prevent plaintiffs from using courts to rewrite government policies they disagreed with. Over the years, though, courts came to apply the discretionary-function exception to virtually every act by a government official that conceivably involved some sort of judgment or choice. Such a vague conception inevitably included just about everything an official might do, transforming the discretionary-function exception into an impenetrable shield protecting the federal government from accountability for harms caused by those they chose to hire, train, and supervise.

In effect, the FTCA key is now missing its teeth.

The Broken State Tort Law Key

The second key is the “state tort law key.” Historically, people whose rights were violated by federal officers could seek redress in state courts under state tort law. If a customs agent, for example, entered your land or boarded your ship without permission, it was your birthright as an American to haul him into court and sue him for violating your rights, bringing a claim for trespass. The official would typically respond that he had acted pursuant to a law that authorized his actions. You would then counter that the law was unconstitutional or that the official had acted outside the bounds of that law. If you had the better argument, you could win compensation from the trespassing officer, and your victory would make federal officials more circumspect about respecting people’s rights in the future.

But in 1998, Congress passed a watershed amendment to the FTCA that derailed this state tort-law process. The amendment, known as the Westfall Act, stipulated that plaintiffs who sued the United States in federal court under the FTCA were automatically prohibited from filing tort lawsuits in state or federal court against the federal employees themselves.

This revision thus removed a traditional and vigorous protection victims had long enjoyed for gaining legal redress from federal officials: state tort lawsuits. Moreover, the Westfall Act effectively channeled federal-harms lawsuits away from state courts and federal officials and pointed them toward federal courts and their federal government employer. This shift diluted the deterrent effect of the suits, since the U.S. government now bore the cost of losing the suit, rather than the employee.

Regardless, with the advent of the Westfall Act, the state tort law key was broken.

Section 1983: The Wrong Key

The third key is the “Section 1983 key.” Unlike the first two keys, which opened up courthouse doors to lawsuits for torts, this key opens them up to lawsuits for constitutional violations.

Congress passed Section 1983 as part of the Civil Rights Act of 1871, in the wake of the Civil War. It was meant to ensure Southern Blacks weren’t oppressed by racist state and local officials. To that end, Section 1983 gave victims a right to sue in federal courts for violations of their rights under the U.S. Constitution. It applies, however, only to violations of those rights by state and local officials—not federal. As a result, it excludes federal officials from its provisions against abuses of power.

When Section 1983 was enacted, Congress saw no need to include federal officials among those whom victims of constitutional violations could sue under federal law. Whereas state officials who oppressed Southern Blacks often received preferential treatment in state courts, federal officials were unlikely to enjoy the same partiality. If anything, Southern judges and juries in the postwar era had little love for the federal government and provided a friendly forum to those mistreated by its employees. Moreover, federal officials could still be sued in state courts under traditional tort law.

But as discussed above, Congress gutted this traditional legal check on federal officials with the 1988 Westfall Act, generally barring tort lawsuits against federal officials in state courts. Abruptly, the omission of federal officers from Section 1983 went from trivial to titanic. It created a dual system of accountability, with state and local officials being legally liable for constitutional harms to individuals when federal officials weren’t. Now, even when public officials act under both state and federal law at the same time—for example, when they’re cross-deputized as state and federal officers on a task force—courts generally treat them as acting under federal authority alone, immunizing them from Section 1983 lawsuits.

Of course, just because a state or local official can be sued under Section 1983 doesn’t mean plaintiffs will have it easy. Having opened the courthouse door, they still must overcome other barriers inside, such as the judicial doctrine of “qualified immunity”—a broad protection against lawsuits that federal courts grant public officials and that is notoriously difficult to surmount. But at least with the Section 1983 key, plaintiffs can open the courthouse door and begin the process of proving their case against a state or local official—something they cannot do if the official who harmed them happened to work for the federal government. With federal officials, the Section 1983 key just doesn’t work.

The Stubby Bivens Key

The fourth and final courthouse key that victims might try in order to redress abuse by federal officials is the “Bivens” key. The Supreme Court cut this key in 1972 with its decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the court made clear, the Bivens ruling was meant to provide a federal analog to Section 1983. The court thus allowed citizens to sue federal officials for violations of their rights directly under the U.S. Constitution, a legal remedy that supplemented Americans’ then-existing ability to sue federal officials under tort laws in state courts.

As a result, for the 16 years between 1972 and 1988 (when the Westfall Act was passed), plaintiffs could reliably sue federal officials in both state and federal courts—the former under state tort law, and the latter under the Constitution via Bivens. But right around the time the Westfall Act took away Americans’ ability to sue federal officials under state tort law, the Supreme Court, lead in its efforts by the textualist Justice Antonin Scalia, began chipping away at Bivens. To Scalia, the Supreme Court’s summarily granting rights to sue under the Constitution smacked of judicial overreach, and the court came to regard expansions of Bivens-style rights as an increasingly “disfavored judicial activity.” In Scalia’s view, if plaintiffs wanted to sue federal officials under U.S. constitutional law, they should lobby Congress to amend Section 1983 to provide them with an explicit right to do so. Thus, since 2017, in cases like Ziglar v. Abbasi,Hernadez v. Mesa, and Egbert v. Boule, the Court has so severely limited the circumstances in which Bivens applies that at this point, scholars and judges alike doubt that Bivens lets anyone through the courthouse door. In short, the Bivenskey has been worn down to a stub.

This leads to a final piece of synergistic damage from the Westfall Act and the Supreme Court’s strangling of Bivens. As noted earlier, the Westfall Act foreclosed tort lawsuits against federal officials in state courts if the plaintiffs were also suing under the FTCA, but it also included something of an exception to this: Congress still permitted suits against federal officials in state courts if the suit was “brought for a violation of the Constitution of the United States.”

On its face, this language would appear to explicitly grant individuals permission to bring constitutional claims against federal officers in state courts. Sadly, the Supreme Court has so far held only that this wording permits Bivens lawsuits in state courts. Interestingly, however, the court has said nothing about other possible grounds to sue under this Westfall language. Thus, with Bivens now practically useless to would-be litigants, federal courts treat Westfall’s one potentially powerful provision for constitutional-rights lawsuits as nothing but a dead letter. The courts effectively preclude claims that Congress never meant to strip away from victims of abuse by federal officers.

Reconstructing Legal Protections Against Federal Abuse

Unfortunately, then, holding federal officials accountable for unconstitutional acts is now more difficult than ever, even as the need for accountability is particularly acute, with thousands of federal agents deployed in American cities. The good news is that these stresses on the rule of law may pave a new path to accountability. There are several opportunities for reform through both the U.S. political and judicial branches.

Congress Should Amend Section 1983

The most straightforward reform is, as Justice Scalia counseled, for Congress to amend Section 1983—the post–Civil War statute—to include federal officials. Right now, the statute applies to only state and local officials—or as Section 1983 puts it, those acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia” (emphasis added). If Congress simply inserted the words “of the United States or” before the italicized text, federal officials would then be included among those whom people could sue for violations of their constitutional rights. This would treat federal officials like all other public officials, ensure they are not above the law, and give victims of federal misconduct a shot at compensation for the harms they’ve suffered.

Last November, Georgia Democrat Rep. Hank Johnson proposed just such an amendment to Section 1983 and dubbed it The Bivens Act. Lawmakers should pass it. True, qualified immunity would still be waiting inside the courthouse door to make these lawsuits difficult, but at least they would not be impossible.

The State Should Pass “Section 1983” Analogs

As discussed earlier, although the Westfall Act limited tort lawsuits it specifically allowed individuals to sue federal officials in state court whenever the suit was “brought for a violation of the Constitution of the United States.” Regrettably, as also mentioned above, the Supreme Court has said only that this provision for constitutional suits in state courts is an acknowledgement that plaintiffs can present Bivens claims—claims the Supreme Court has aggressively whittled down to the vanishing point.

But nothing in the Westfall Act’s text limits these constitutional lawsuits to Bivens claims. Moreover, the Supreme Court did not say that Westfall’s language excluded traditional suits under state law for violations of the United States Constitution.

Thus, to give force to the Westfall Act’s original language, states should pass statutes of their own that mimic the language of Section 1983 and add federal officials to those liable for failures to respect citizens’ constitutional rights. These laws are called “converse 1983s” because in contrast to Section 1983, which was enacted by the federal government to protect U.S. residents from abuses by state and local officials, converse 1983s are enacted by state governments to protect state residents from abuses by federal officials.

Four states—California, Maine, Massachusetts, and New Jersey—already have converse 1983s that explicitly provide plaintiffs the ability to sue under state law for any local, state, or federal official’s violations of their constitutional rights. Illinois passed a variation of the law last fall. New York, Maryland, Virginia, Colorado, Oregon, Rhode Island, Washington, Wisconsin, Minnesota, and California (trying to improve on its original effort) are considering converse 1983s as well. Other states should follow suit.

This should not be a partisan issue. Arkansas would undoubtedly like to empower state residents when their homes are raided by ATF officials. Wyoming undoubtedly would like to do the same when Bureau of Land Management agents trespass on their residents’ land. By passing converse-1983 statutes, red states and blue states alike can protect their residents’ rights.

The Supreme Court Should Rein in the FTCA’s “Discretionary-Function” Exception

The FTCA’s effectiveness is inherently limited. As the Supreme Court explained back in the 1980s, “the Bivens remedy [against individual federal agents] is more effective than the FTCA remedy [against federal agencies].”

But Bivens-style individual liability is unlikely to regain the Supreme Court’s favor anytime soon. In contrast, the conservative textualists on the bench should have no trouble joining their liberal colleagues to once again make the FTCA an effective remedy for federal officials’ violations of people’s civil rights by reining in the judiciary’s broad readings of the FTCA’s discretionary-function exception. These readings end up shielding far too many inappropriate actions by federal officials. The Supreme Court should make clear that the discretionary-function exception does not protect unconstitutional conduct. Once federal judges know this, the FTCA can once again provide victims a realistic route to relief in court.

Reinforcing Rights with Remedies

As inherently optimistic public-interest lawyers, we hold out hope that 20 years from now someone will read this piece as an anachronistic account of how things used to be, not a warning of worse things to come. But America is under a stress test. Our laws regarding abuses by federal officials represent fundamental weaknesses in our system of government, and the Renee Good and Alex Pretti incidents, among many others, show what can happen when these weaknesses aren’t addressed.

By recognizing these vulnerabilities in our system, we can rectify them in Congress and the courts. We must try to once again buttress our rights with remedies, lest we become, contra John Marshall, a government not of laws, but of men.

© The UnPopulist, 2026

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

A good way to understand our current predicament as Americans is to imagine that we are a bear in the woods being attacked by hungry wolves. Our paw is caught in a trap, and a wildfire is raging our way. The wolves are politicians. Some are gray, some are black, but wolves are wolves. It doesn’t matter what side of America’s yawning political divide you stand on: both sides feel like they’re being attacked by wolves.

One side feels the shredding of safety nets, federal programs, and commitments to inclusion and honest history. The other side feels the destruction of traditional family mores, religion, and parental control.

So, we are driven to close ranks. Gallop found that, on average last year, a gob-smacking 90% of Republicans—the number getting as high as 93% for nearly a quarter of the year—approved of President Trump’s job performance. Just 3% of Democrats did. Such a historically wide gulf tells us that each side fears it will get torn apart whenever the other side is in charge.

Meanwhile, flames are bearing down on us from the edge of the forest. The wildfire is global economic turbulence fueled by globalization (and now de-globalization) and technological transformation. These fuel climate change and historically unprecedented levels of human migration, which in turn sparks cultural destabilization in societies around the globe. They also contribute to our nationwide housing crisis.

Maybe we could fend off those wolves once and for all and also do something about the flames—if we could just get our foot out of that dang trap.

But what’s the trap?

The trap is an election system that has been captured by party processes gone wrong. We’ve had decades of changes—some of them well-intentioned, some about accruing power—to how our political parties operate. They have left us in a place where most members of Congress are elected by only 5 to 8% of the electorate in their districts. Gerrymandering and low-turnout primaries mean that if a candidate appeals to the most intense and active members of their partisan base, they can sail into office.

Our members of Congress don’t work for the bulk of Americans, they work for that tiny sliver of partisans. Their incentive is to keep their base happy, so they have little reason to make deals that would compromise the ideological positions for which they were elected. Congress is now so split along ideological lines that it rarely gets any legislation past the Senate filibuster. What does a dysfunctional Congress give you? A power vacuum and a frustrated, anxious public. What happens when Congress stops legislating and leaves a power vacuum? Well, the executive will fill it.

Since FDR, the power of the president has only grown, but that growth accelerated with our last two presidents. Joe Biden leaned into the Covid emergency to cancel student loans, require vaccinations, and extend a ban on apartment evictions. Now, thanks to Project 2025, a unitary executive theory on steroids, and an assist from the Supreme Court’s presidential immunity decision, we have a president who is governing by executive order to an unprecedented degree.

Back in England in the 1760s and 1770s, the complaint in London was that Parliament had lost legislative supremacy. That is why people began to call King George III a tyrant.

The U.S. Congress has lost legislative supremacy.

How to Free the Bear

Democrats and Republicans have both learned that declines in membership needn’t diminish their ability to win control of the nation’s institutions. In 2004, according to Gallup, 34% of Americans considered themselves Republican, 34% considered themselves Democrats, and 31% considered themselves independent. Twenty years later, those numbers were 28% Republican, 28% Democrat, and 43% independent.

Has the power of the parties shrunk with the public’s declining affiliation with them? Not at all. Thanks to gerrymandering and low-turnout primaries, each of America’s two major parties can control the most powerful nation on earth with less than one-third of the population calling the party home.

Year after year taxpayers keep paying for party primaries, even though party enrollment keeps shrinking. The Republicans and Democrats are like companies with a declining customer-base but a guaranteed revenue stream, thanks to American taxpayers. This is corruption of the worst kind, because it distorts the fundamental distribution of power in our system of self-governance.

How can this two-party doom-loop, as political scientist calls it, be broken? These problems with the parties have generated two reform strategies in democracy renovation circles. One seeks to end the two-party doom-loop by encouraging the formation of new parties and minor parties, or even the kind of multi-party landscape that operates in European parliamentary systems. Ranked-choice voting, or fusion ballots like New York uses, are the proposed solutions. The second takes an anti-party position, wishing to see parties diminished and replaced by centrist, problem-solving politicians who are able to forge bridge-building coalitions. The solution, on this view, is open or nonpartisan primaries where all candidates run on the same first ballot, and then some number of finalists moves on to the general election.

In my view, neither dream is realistic. Parties are necessary for healthy democracies. They are mediating organizations that connect people at the local level to larger national issues, and they serve as information clearinghouses. They simplify the job of thinking about the many issues a citizen might want to weigh in determining their vote.

America will never settle permanently into a European-style multi-party system. The combination of federalism and our elected executive will continually drive our politics toward a two-party equilibrium. The story of the 19th century reflects the natural state of our institutions. Two major parties emerge for a time; then they split, or else minor parties emerge, and the country goes through a period of realignment—as when the Republicans emerged from the Whigs—and eventually the chaos of multi-parties resolves back to two dominant parties.

At the end of the 19th century, though, the Democrats and Republicans began passing laws at the state level to make it much, much harder for new parties to form. Like any other monopolists, they acted to protect their turf. States set a minimum number of votes required for a party to maintain its status. Running a political party became a state-regulated activity, and diverse rules proliferated around the country. Today, to function nationally a new party must master 50 different sets of procedures. This remains a serious barrier even for well-known parties that have existed for decades.

We must change the operating conditions for our parties. They need incentives to work for the American people, not just for themselves and their shrinking number of members. Two reforms are needed to steer our parties toward health.

First, we need to abolish party primaries. Parties should have to compete for the whole electorate, rather than being able to claim power based on low-turnout, gerrymandered primaries.

Second, the barriers to entry for new parties need to be lowered. We should abolish taxpayer-funded party primaries and replace them with an all-party primary, where all candidates run on the same first ballot and the top vote-getters go on to a final round.

Four states already work this way: Louisiana, California, Washington, and Alaska. In the first three states, two finalists go on to the final round. In Alaska, four finalists move on and voters get to use ranked-choice voting in the general round. Two more—Massachusetts and Oklahoma—are working on getting similar reforms through.

Candidates from these states span the political spectrum. This reform seems to have brought Washington State a somewhat more progressive politics, while California has seen some moderation (possibly also the result of independent redistricting there). Louisiana and Alaska are both more conservative. But the crucial thing is that across the spectrum, these states have politicians who are more willing to make deals across party lines. They don’t have to live with the fear of being primaried for stepping out of line. And deal-making is good for doing work for America.

All-party primaries can be structured to make it easier for minor parties to compete. Parties can still hold endorsement conventions and candidates can carry those endorsements on the ballot. They can even carry more than one endorsement. Voters will routinely have actual choices, not the sparse subset of candidates one of the major parties puts forward. Public debate will be improved. Challengers will have a better chance of winning. Incumbents will be rewarded for figuring out how to work for, and run in relationship to, the whole electorate. Democrats will see more general election races pitting two Democratic candidates against each other, restarting the engine of ideas for the party. Republicans will see less blocking of pro-democracy Republican candidates in the primary process. Third-party candidates will have more opportunities to carry their message and potentially break through.

People often think that democracy renovation is a long-term game, but that’s wrong. Every two years, we have a chance to change the rules that govern how our parties operate. If we can clean up our party system a bit every two years, eventually we will have re-domesticated those wolves, turning them back into sled-dogs pulling together for the whole American people.

Don’t Be Afraid to Free the Bear

If we’re the bear, and the way to get our paw out of the trap is to get rid of party primaries, why haven’t we done it yet?

There are still those wolves after all, and their bites are excruciating. Maybe you run a labor union, and your members’ jobs are being hacked away by AI. You might reasonably think you must devote every ounce of energy to fighting off this threat. You would not be wrong.

But here is another question to consider: Wouldn’t you have a better chance of reining in the power of Big Tech if you could turn toward democratic institutions that were not captured by parties that have been captured by big money, including tech money, but that instead actually work for the whole American people? The urgent problems we face will be better addressed if our politicians view their responsibility as working together, for all of us. If another weapon of self-defense—through reform to political primaries—is within reach, maybe it makes sense to grab it?

The most paralyzing question of all is this: “If getting rid of primaries means politicians always have to campaign to the whole electorate, won’t they be less responsive to my particular needs and the needs of my community?” This question often comes from people who believe so much in democracy that they participate vigorously in our current primary system. They have correctly observed that sometimes the small turnout in a party primary makes it easier to overcome an incumbent politician and elevate a new voice in our politics. Our most activist lovers of democracy draw some real benefit from the current system.

All-party primaries put the whole electorate back in the driver’s seat. Yes, this does mean that, if you’re an activist with a cause, you’ll have to make your case to everyone. It won’t be possible to slip through with just a sliver of the voters. But if one prefers the primary process as it currently exists for getting one’s causes through, that suggests a surprising lack of confidence in the value of one’s policies for society as a whole. If a policy is good for the broad community, then one should be able to win elections by advocating for it.

Of course democratic majorities are not always right, but we should have confidence in being able to work with our fellow citizens. Democratic theorists have been worried about the tyranny of the majority since at least James Madison. Strong rights protections and fair courts are necessary. Yet the election system must be tethered to the whole people—that is the purpose of universal suffrage, after all.

Someone said, in the 19th century, that “you can fool all of the people some of the time, and some of the people all of the time, but you cannot fool all of the people all of the time.” Wrongly attributed to Lincoln, this quotation nonetheless captures Lincoln’s strong faith in the American people and his belief that self-government depends on the permanent attachment of our political institutions to the broad population. Lincoln did say, “The people ... are the rightful masters of both Congresses, and courts—not to overthrow the Constitution, but to overthrow the men who pervert it.”

Renovating democracy requires confidence in constitutional, rights-protecting democracy. The party primaries that dominate our current system have been created and sustained by interests that lack that confidence. The task of winning policy victories via a competition for the allegiance of the whole electorate is bracing and hard. Yet it is fundamentally the necessary work of constitutional democracy—even for activist causes. The work starts by shutting down fear of one’s fellow citizens and replacing it with curiosity.

The trap we’re in is not merely the institutional problem of party primaries. It is also fear of our fellow citizens. There will be cultural work to do to get ourselves out of our trap. But for now, let’s start beating back the fear by scenario-planning how to fight elections in new conditions. There is a better world on the other side of freeing the bear. Let’s not be trapped by fear itself.

An earlier version of this article was first published in The Renovator.

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

Briefly at 3.22 a.m. Saturday, as news broke of U.S. airstrikes in Venezuela, Mike Lee, the “constitutional conservative” senator from Utah, expressed concerns about the legality of the operation that are surely on the minds of many Americans too. “I look forward to learning what, if anything, might constitutionally justify this action in the absence of a declaration of war or authorization for the use of military force,” Lee posted on X.

Less than two hours later, Lee found a rationalization for looking the other way, his brief flirtation with principle abandoned. Again, taking to X, he posted:

Just got off the phone with @SecRubio

He informed me that Nicolás Maduro has been arrested by U.S. personnel to stand trial on criminal charges in the United States, and that the kinetic action we saw tonight was deployed to protect and defend those executing the arrest warrant

This action likely falls within the president’s inherent authority under Article II of the Constitution to protect U.S. personnel from an actual or imminent attack

Thank you, @SecRubio, for keeping me apprised

Taken on its own stated terms, this reduces congressional war powers to an easily evaded nullity. A mere grand jury indictment in a federal district court could replace the Congress on matters of war. It’s worth unpacking the stunning logic here.

Grand Jury War Powers?

From what we know right now, the United States conducted numerous airstrikes in and around Caracas while American special forces captured Venezuelan dictator Nicolas Maduro and his wife who are being flown to New York to stand trial.

This operation, an unambiguous act of war, was conducted without any congressional approval—or even any advance notification to key congressional committees, something explicitly required under the War Powers Resolution of 1973. Congressional approval, even with Republican majorities in both chambers, probably would not have been forthcoming since military action in Venezuela is overwhelmingly unpopular.

But Congress’ will is irrelevant if Rubio’s explanation that Maduro had been indicted on various drugs and weapons charges in the Southern District of New York during the first Trump administration is sufficient justification for the president of the United States to execute an “arrest” of a foreign head of state by bombing and invading his country.

If taken seriously, this would mean that a simple vote by a grand jury can replace congressional power to declare war and regulate the use of military force. In other words, a secret process by randomly selected citizens—not elected representatives—and so deferential to prosecutors that it could supposedly “indict a ham sandwich,” is sufficient to launch a war.

Lee’s endorsement of this logic is particularly galling because he is one of the handful of legislators who have previously professed to take war powers seriously. In 2011, he adamantly condemned Obama’s unauthorized war in Libya. In 2021, he was similarly critical of the Biden administration’s unauthorized airstrikes in Syria. That same year, he cosponsored bipartisan legislation attempting to reassert Congress’s constitutional role.

A History of Presidential Usurpation

As that history indicates, Trump is far from the first president to usurp the war powers vested by the Constitution in Congress. But, as with so much else, he has gone even further.

All of this would have dismayed the Framers.

George Washington, in declining to order an attack against hostile Indians, observed, “The Constitution vests the power of declaring War with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorised such a measure.” James Madison, the Constitution’s primary architect, was likewise adamant: “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

Vesting war powers in Congress was a very deliberate change from the British system, where declaring war was (and still is) a royal prerogative requiring no involvement from Parliament. Rejecting that template was one of the ways the new Constitution sought to ensure the president would not be king.

To be sure, it was recognized from the start that the president, as commander-in-chief, has the power to respond to sudden attacks before Congress can be summoned to respond. For example, American forces at Pearl Harbor did not have to wait for a congressional declaration of war before they could shoot back and defend themselves. But Roosevelt promptly requested, and received, a declaration of war the next day.

This arrangement mostly held throughout the 19th and into the 20th century. Presidents requested, and Congress granted, declarations of war against: Britain in 1812, Mexico in 1846, Spain in 1898, Germany in 1917, and the Axis powers in World War II. Some of these cases were more controversial than others, but in each instance the legislature openly debated and freely made a decision for which elected leaders were democratically accountable to voters.

This separation of powers began to break down with the Cold War when President Harry Truman insisted the Korean War was justified as a United Nations “police action” with no need for Congress. Vietnam proceeded under the factually and legally ambiguous Gulf of Tonkin resolution, vaguely authorizing force in response to a reported attack on a U.S. naval vessel, now known to have been spurious. This imprecise resolution then formed the basis of a war lasting nearly a decade and costing more than 50,000 American lives.

But after the disaster of Vietnam and Nixon’s illegal expansion of the war into Cambodia, Congress attempted to reassert control with the War Powers Resolution, passed into law over Nixon’s veto in 1973.

The War Powers Resolution allows the president to “introduce United States Armed Forces into hostilities” under only three conditions: “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” It also sets requirements for consulting with and notifying Congress both before and after hostilities, and a timeline for a quick congressional vote on authorization.

Unfortunately, presidents since have repeatedly violated the War Powers Resolution. No approval was sought for various invasions and bombing campaigns in Grenada, Panama, Libya (repeatedly), Yemen, and the former Yugoslavia, among others, all of which involved unquestionable “hostilities.” Among America’s many wars and interventions in recent decades, Congress has only passed an authorization three times: for the Gulf War, the post-9/11 war against al-Qaeda and the Taliban, and the invasion of Iraq.

Presidents have often offered implausible contortions, such as the Obama administration’s argument that a months-long bombing campaign with thousands of airstrikes in Libya did not amount to “‘war’ in the constitutional sense.”

But Rubio’s theory is even more contorted. Any administration can obtain an indictment against a foreign head of state. Then when the foreign government fights back as we try to “arrest” its leader, its response is construed as an “attack” on American forces. It’s an inversion worthy of Orwell’s “war is peace” — defending against an attack is itself an attack. Under this logic, anybody can be the aggressor if they fight back against American aggression.

This is patently absurd. It’s not just wrong—it bears no good faith relationship to the plain meaning of words in the English language.

Mission Not Yet Accomplished?

As is so often the case with Trump, the man himself soon overtook the excuses enablers made for him. Lee’s posts included a supposed assurance from Rubio that he “anticipates no further action in Venezuela now that Maduro is in U.S. custody.” Apparently, the commander-in-chief didn’t get the memo.

In his press conference (after he’d first posted on Truth Social and called in to Fox & Friends), Trump made an astonishing assertion: “We’re going to run the country until such time as we can do a safe, proper, and judicious transition.”

In case there was any doubt, when pressed by reporters about how the U.S. could possibly “run” a country larger than Texas and with almost 30 million people, he elaborated, “We’re not afraid of boots on the ground if we have to have it.” And to leave no doubt he meant for the U.S. to occupy the country, he gestured to his cabinet behind him and said, “We’re gonna be running it.” He also dismissed the possibility of Venezuelan opposition and recent Nobel laureate María Corina Machado assuming power, instead issuing an endorsement of Maduro’s own vice president as a successor along with “people in the [US] military.”

As if that was not enough, he emphasized—repeatedly—that American war aims in Venezuela include seizing the country’s oil to pay for the U.S. occupation, potentially for years. War as a for-profit business is not a new theme for Trump. He has long faulted George Bush for not seizing Iraq’s oil to offset America’s expense of invading the country. And he threatened possible actions in Colombia (a democracy and longtime U.S.ally) as well as Cuba.

In Trump’s mind, the scope of this war then entails invading, occupying, and running Venezuela, potentially for years on end, never mind that this is wildly implausible since the U.S. has nowhere near enough troops deployed in the region to pull off such a massive operation.

The insanity of Trump’s press conference, and the massive scale of the catastrophe he is contemplating, may or may not prompt Lee to reconsider accepting a bad faith lie at face value.

Either way, Congress—regardless of party—has an obligation to push impeachment (which any member can force a vote on) and also pursue remedies under the War Powers Resolution. As flagrant as past presidential violations of congressional war powers have been, the scope of Trump’s apparent hallucinations about the facts on the ground, and the massive scale of the war he is purporting to launch, demand serious discussion of impeachment. There is ultimately no other remedy Congress has against a lawless president. Of course, this would only be one among his dozens of other crimes against the Constitution committed over the past year.

Congress could also tie appropriations restrictions to the looming government shutdown on January 30, explicitly denying funding for any further military action in Venezuela. It should also contemplate new legislation to fix the ways in which the War Powers Resolution has proven ineffective. Any such law would face the hurdle of a presidential veto. But even if two-thirds super-majorities for a veto override is unlikely (albeit not impossible, if this debacle proves unpopular enough), it is worth underscoring the reality that majorities in Congress disapprove. Eventual reform, and accountability, requires putting congressional opposition on the record now. Congress must attempt to use all the tools at its disposal to build momentum for a serious repudiation of lawless presidential war making in the future.

It is long past time that Congress gave real teeth to its constitutional power to declare war. As with so many things, Trump didn’t invent a bloated, power-grabbing presidency, but he has brought it to its inevitable conclusion, the very thing most feared by the Founders: A madman able to plunge the country into war on a whim.

© The UnPopulist, 2026

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

Listen to The Reconstruction Agenda from The UnPopulist in your favorite podcast app: Apple Podcasts | Spotify | Google Podcasts | RSS | YouTube

A transcript of today’s podcast appears below. It has been edited for flow and clarity.

At the heart of our constitutional system is Congress. In thinking about how to repair our broken government, and in particular the runaway imperial presidency, the role of Congress is essential. So to discuss this, I’m happy to have one of the leading scholars of congressional power and the history of congressional reform. Josh Chafetz is a professor of law and politics at Georgetown, and the author of Congress’s Constitution: Legislative Authority and the Separation of Powers.

Andy Craig: When we’re thinking about the history and the context in which the Constitution was written, a lot of that really goes back to the English history: the English Civil Wars and Charles I and all that. So how did that inform not just the broader Anglo-American tradition, but particularly how the Framers were thinking of it when they sat down to write the Constitution?

Josh Chafetz: The 17th-century English context is very consequential and very present to the founding generation. Throughout most of the 17th century, you have Stuart monarchs. This new, in some sense foreign, Scottish line has come to the English crown starting in 1603, and is very quickly at loggerheads with Parliament, and in particular, mostly with the House of Commons. And that leads to the English Civil War.

After the Restoration in 1660, it leads to the Glorious Revolution [in 1688]. So, two of the four Stuart monarchs are deposed in the 17th century. And, actually, in some sense the American colonists view that as more similar to their own situation than the English, and then British, governments that arise in the 18th century. Because in the 18th century, in Britain itself, you have the rise of ministerial responsibility to Parliament. So you have the rise of the system that they still have to this day, where the government actually answers directly to Parliament.

But when the American colonists, and New World colonists more broadly, look to their own situation, what they see is that they have elected colonial legislatures—but they have both judges and executive officials that are imposed on them by London—by the Board of Trade, by the Crown. So, in some sense, they actually see Parliament’s fights against the Stuart monarchs as being more similar to their own situation than they see the, for them, present-day relationship between the Hanoverian monarchs and Parliament. So it’s actually very present to them. It gives them this language that you see the colonial legislatures really picking up on, starting in the 1760s, of legislative supremacy and of using all of the tools of the legislature to push back against royal officials.

Craig: So we’re often used to thinking of this as presidential versus parliamentary systems. I mean, if you take a political science class today, you’ll learn about how America is a presidential system. But, of course, these concepts didn’t really clearly exist yet at the time.

The presidential model, as it came to be, was something they were kind of making up as they went along. And the parliamentary system, the Westminster system as we know it, didn’t really fully exist yet. One of my favorite little tidbits about that is that the first motion of no confidence was actually the one that toppled Lord North, that brought the American Revolution to an end. So that kind of intertwined history of American and British democracy is great.

But I think that goes to how they weren’t thinking in the terms we would come to think of it, as three strictly separated branches of government. You read the Federalist Papers, they thought they were trying to make the executive weaker than the existing British system. But it really was, in that context, parliamentary supremacy that infused these ideas. That’s what they were thinking about as the purpose, the central role of the elected legislature. Is that right?

Chafetz: Yeah, and I think one way to think about it, instead of trying to think in terms of parliamentary versus presidential systems, is simply whether the executive answers directly to the legislature or not. In the American constitutional system, the executive doesn’t answer directly to the legislature. We have a separate system for electing the president. There’s no such thing as a motion of no confidence. There’s impeachment, of course, but that sort of presupposes not just policy disagreements but a certain level of actual malfeasance or non-feasance.

In some sense, that is similar to a system in the 17th century, where the executive was the crown. It was not chosen by parliament; it was hereditary. That starts to change in Britain itself in the 18th century, when the crown ceases to mean the monarch or even people who answer directly to the monarch, but rather means the government that gets put in place, because it’s sort of responsive to the parliamentary majority. That’s why I say that the Americans in the founding generation actually thought they had, in some ways, more in common with the Englishmen of the 17th century than with the Britons of the 18th century. Part of what that means is that they’re picking up on this language of legislative power in pushback against overweening executive power. And that’s actually really present and really important to them.

Craig: So I want to set up the history in very broad strokes. I know this is a big question, but over the course of the early Republic and throughout the 19th century, you had some presidents who came in and were stronger and more dominant. But for the most part, Congress was much more central as the main political arena where the big decisions were made—particularly, famously, in the latter half of the 19th century. These were very politically weak presidents. How and why should that change over the course of the 20th century and into the 21st? Because it doesn’t seem like it’s necessarily a natural evolution that you had an institution with this much power and centrality, and over time it bled power to primarily the presidency but also, to some degree, the courts.

Chafetz: You’re absolutely right. Congress was, for almost the entirety of the 19th century, certainly the prime mover in domestic politics, the prime mover in distributive politics and in all of the normal things we think of as the day-to-day functioning of the government. It was really Congress making these decisions.

A big part of what the presidency was understood to do was actually dispensing patronage, keeping their party together by bringing as many of their supporters into government—and therefore onto the government payroll—as possible. But presidents for most of the 19th century weren’t really directing policy in any particularly strong or meaningful sense. That was happening in Congress.

I think part of it is a story about the rise of the administrative state. Part of it is a story about at the end of the 19th, beginning of the 20th century, Americans want the federal government to be doing more and more things. And that creates almost inexorable pressure towards creating administrative agencies. There’s only so much of that work that actually could be done in Congress. As the workload picks up, it needs to create more administrative agencies.

But even then, the agencies were largely seen as creatures of Congress. They were not seen as the sort of things that necessarily answered to the presidency. And it’s really actually a far more recent story than I think a lot of people think. But you get an ideology [that] now is called unitary executive theory, an ideology of presidential control that really, as a lot of recent research has shown, is largely a creature of the 1970s—this idea that you’d have centralized presidential control over these agencies.

It’s a much earlier story that these agencies are exercising more and more power, but these agencies saw themselves not as directly responsive to the president. And presidents didn’t see themselves as having direct supervisory power over these agencies really until the ‘70s. And then that grows through the ‘70s, ‘80s, and is continuing to grow today. That sort of idea increasingly captures the judiciary as well, which beginning in the 1980s and continuing right through the present day begins to treat presidential control over the agencies as being constitutionally required in a way that it had not been understood to be before.

Craig: Yes, and I’ll do a quick plug for our last episode with Noah Rosenblum, in which we were discussing, in particular, the history of the removal power in that story.

Chafetz: And Noah’s done just some of the best work on all of this.

Craig: Definitely. But one other historical point I want to hit before we move on to the present context is this decision, INS v. Chadha, that really had the effect of gutting some of the post-Watergate reforms. Because there was that moment of things like the National Emergencies Act, there was the Church Committee. It felt like in the mid-’70s there, after Nixon resigned, that there was a little bit of an effervescence of congressional pushback. But a lot of these laws aren’t working as intended because of this court decision. So what exactly did Congress try to do, and what did the court find in that? And what was the reasoning?

Chafetz: So INS v. Chadha is a 1983 decision of the Burger court. There are these family of mechanisms that go under the name of the legislative veto that had been used by Congress since the early 1930s, and it’s not coincidental that it starts in the 1930s.

This goes along with the rise of the administrative state, and Congress has this idea that, well, we understand the necessity of delegating power to administrative agencies. But if we can’t make all of these sort of granular decisions ourselves, and we know that we can’t, we want to at least maintain a post-hoc check on how the agencies use that power.

And so they start creating these things called legislative vetoes, where the basic idea is, in any particular statute that’s delegating some authority to an administrative agency, they would say, when you promulgate the rules that you’re authorized to promulgate under this statute or something like that, you have to send those rules to Congress, and we basically get to say if we don’t like them. And there were different forms this could take.

Sometimes it was a one-house legislative veto. If either the House or the Senate says, “We don’t like it,” then it doesn’t go into effect. Sometimes it was a two-house legislative veto. If both houses say they don’t like it, it doesn’t go into effect. Sometimes it was even a committee veto. You have to send this to the Agriculture Committee in each chamber, and if either Agriculture Committee doesn’t like it, it doesn’t go into effect.

There were hundreds and hundreds of these provisions in federal statutes passed from the 1930s, continuously thereafter. And then suddenly, in 1983, the Supreme Court comes in and says, “These are all unconstitutional.” This is a case called INS v. Chadha. The particular legislative veto in that case was a one-house legislative veto over suspension of deportation decision. So it was an immigration law case.

There were all kinds of ways that Chief Justice Warren Burger, who wrote the majority opinion, could have written a more modest opinion. But instead, he goes big, and he writes an opinion that basically says, “Nope, all legislative vetoes are a congressional usurpation of executive power. They’re all unconstitutional.” So that’s one important thing that happens there.

And then the other important thing that happens is what’s called severability. This sounds like a technical, lawyerly thing, but it’s actually really important. So when the courts decide that some particular statutory provision is unconstitutional, they have to decide how much to strike down. Do you strike down the entire statute that it’s a part of, or what smaller unit of it do you strike down?

What Burger says in that opinion is, “We’re just going to strike down the legislative veto itself. That’s it.” So the effect was to undo the deal that Congress had struck, because the way Congress passes these legislative vetoes, it’s always the pairing of a delegation of power and a legislative veto. So we give the executive branch, we give the agency, this power, but we reserve the right to veto it.

So what the court could have said, even if the court was going to strike down the legislative veto in Chadha, is, “Well, there’s this suspension of deportation provision that gives the attorney general discretion, and there’s a legislative veto in case Congress doesn’t like how it uses that discretion. If we think the legislative veto is unconstitutional, we’re going to strike down not just that, but also the attorney general’s discretion.” It could have said that, but it didn’t.

Instead, it says, “We’re going to allow the attorney general to keep the discretion, but we’re going to take away Congress’s post hoc check.” That turns out to be hugely consequential, not just in, or not even primarily in, the suspension of deportation scheme that’s an issue in Chadha, but in all of these post-Watergate reform statutes that you’re mentioning.

So it turns out, not coincidentally, that there are legislative vetoes in the War Powers Resolution, the Impoundment Control Act, the Arms Export Control Act, the National Emergencies Act, the International Emergency Economic Powers Act. These are many of the most consequential post-Watergate reforms. These are all passed between 1973 and 1977, and they all contain legislative vetoes, and those legislative vetoes are all wiped off the book by INS v. Chadha. And in four of those five, in all but the Impoundment Control Act context, the legislative veto is wiped off the book, but the delegation of power remains. And that is hugely consequential because all five of those statutes have been the source of major controversies in the first five years of the Trump presidencies.

Craig: And the kind of perverse thing about that, and we see these votes all the time, is you can have Congress, by majorities, by pretty healthy majorities in some cases, saying, “You know, we disapprove of this emergency declaration or that tariff or whatever the case may be. But under the holding of Chadha, this has to go to the president to be signed or vetoed.” By definition here, you’re overriding what the president has done. And as we’ve seen in other contexts, given partisan incentives, it’s very difficult for a president to ever have less than at least one-third in at least one house who are willing to back him on whatever the issue may be.

Chafetz: Exactly. And we’ve seen this play out in the Trump presidency. With the border wall emergency, where the disapproval resolution passed both houses of Congress overwhelmingly, but not by two-thirds supermajorities, and Trump vetoed it. In the current Trump administration, with tariffs, where the Senate has now three times voted to disapprove various tariffs under IEEPA, and it’s clear the votes are there in the House too, but it doesn’t matter because Trump would veto it. We’ve seen it in the Arms Export Control Act context in the first Trump administration, where both houses of Congress passed a disapproval resolution over an arms sale to Saudi Arabia, and Trump vetoed it.

And in all of those contexts, pre-Chadha, the mere passage through Congress would have been enough. It wouldn’t have needed to go to the president for his signature. Post-Chadha, the only way these things can be disapproved is if you send them to the president for his signature and he signs them into law like any other statute.

But, of course, the whole point is that you’re trying to disapprove of the things the president has done. Of course he’s not going to sign them into law. And so you’ve left the president with these tremendous delegated powers, and taken away the check that Congress had reserved for itself. You’ve undone the deal that was struck, but you’ve only undone one side of it.

Even in a situation in which Republicans control both chambers of Congress like they do now, we still see it having an effect. We still see situations in which some Republican members would be willing to push back against the president, but they’ve been deprived of the tools for doing so.

Craig: In addition to all these legislative veto schemes that were struck down, this is also how regular legislation works. And that’s what we’re used to thinking of as the main power of Congress, making laws. And, you know, we all remember our Schoolhouse Rock. It goes through each house and then the president signs it or else it takes two-thirds in both houses to override a veto.

This setup is pretty favorable to the president in a way that took a long time to evolve. Because early on it was the norm … I mean, relatively early, they broke this. Andrew Jackson was the one who broke it. But initially, the president would only do that for constitutional objections. And now, of course, it’s become a very freestanding policy tool.

So in the immediate context of the constitutional omni-crisis that is the second Trump administration, we’re looking at the midterms. Certainly from the elections we had earlier this month, things are looking pretty good for the Democrats. They’re probably going to take the House. They have an outside chance of maybe taking the Senate. But then what?

Because they can’t pass anything that he’s going to veto unless they peel off a lot of Republicans, which is difficult and unlikely in most cases. We’ve seen a lot of funny business on the power of the purse in terms of their control over spending. And the administration is violating that, frankly, sometimes in ways that don’t seem to have any great remedy.

But in your book, you make the point that this is not the only power Congress has, and even post-Chadha, that there are things Congress can do, sometimes just one house acting alone, sometimes even just an individual member. So let’s start with the one house, and I suppose also, in some cases, a particular committee of the house, which is acting for the house. What can they do against a really aggressive, power-grabbing executive branch in this sort of situation?

Chafetz: One power that individual chambers and indeed individual committees of chambers have is oversight power: the ability to demand information from the executive branch, but also from private actors; the ability to stage oversight hearings in such a way as to command public attention.

And these can have significant electoral consequences, if nothing else, right? It’s a way of focusing people’s attention on an issue. It’s a way of putting on a demonstration of what’s wrong. It’s political theater, but theater is a good thing, right? Politics is about performance. And so I think the most successful example of this that we have in recent years is the Jan. 6 committee in the House. That really commanded a tremendous amount of public attention. Some of the primetime hearings they held got more or less the same audience as a Sunday Night Football broadcast. So these were huge focal points. Polling shows that a lot of people paid attention to them.

And they actually had a significant impact on the 2022 midterm elections. There’s a decent amount of political science research showing that Republicans who were identified as election deniers or identified with the Jan. 6 insurrection did worse than other Republicans in the 2022 midterms. There was an electoral penalty for being associated with that. And I think a good part of that can be traced back to the way in which the Jan. 6 committee made its case.

So I think that can be a model for Democrats if they take either chamber, much less both of them, to try to think about, “Okay, how are we going to stage hearings that capture the public’s attention? How are we going to demand information and present that information to the public?” In some sense, we see echoes of this, even literally today, with the Epstein files. Congress demanding information.

Another way that an individual chamber can make its views efficacious is, of course, the Senate’s role in confirmations. The Senate can simply either refuse to confirm nominees, or force the president to appoint nominees that are more acceptable to the Democrats if the Democrats were to control the Senate. It can use confirmation hearings to make its concerns known and also extract promises from nominees. That’s a significant source of power in the Senate.

And then another way that individual chambers can press their policy positions is through the appropriations process. So part of that might be funding the things they want funded, but part of it can be defunding the things they want defunded. Government shutdown, like the one we just came out of, is at the extreme end of that.

But imagine that the House puts a rider in an appropriations bill that basically defunds the White House Counsel’s office. And if that provision gets through both the House and the Senate, now you say, “Well, Trump could veto it.” That’s true, but we don’t have a line item veto at the federal level. If Trump vetoes that bill, he’s choosing to shut down some … you know, depends how much of the government that particular bill funds, right? We’re in an age of omnibus or minibus statutes, so it might well be that that funds a third or a quarter of the discretionary functions of the federal government.

So then you present Trump with a choice: Either accept this provision defunding the White House Counsel’s office, or you are choosing to shut down a bunch of the federal government. And shutdowns are not popular. So there are all of these levers of power that even an individual chamber, much less both chambers, if they’re in the same party’s hands, can use against a president, and can try to really press their positions that way.

Craig: I want to come back to the Senate confirmation process in a moment. But on that oversight point, the Jan. 6 committee in some sense had an advantage in that Joe Biden was in the White House, so they weren’t getting fought nearly as much on subpoenas. There were other people who fought subpoenas. I mean, this is what Bannon and a couple others actually got some short jail time for. But that’s because the executive branch, Biden’s Department of Justice, was willing to take up those prosecutions.

So during the actual first Trump term, and I think we’re seeing already some of it now, there was a sense that protracted litigation and refusal on the part of the executive branch, various Cabinet agencies, the White House, to provide responses to these demands for information, these subpoenas that were issued by these committees.

So there’s different ways Congress can try to enforce when it has a subpoena power. I mean, one, it can do its own kind of civil litigation against somebody, and usually a committee is empowered to do that. But ultimately, it refers it to the Department of Justice, and they have to either prosecute or not, which gets to the problem of who’s in control of the White House. But there is a third little-known option that hasn’t gotten a lot of use in a long time, and this is the inherent contempt power.

If I understand this right, it has happened before, where a house of Congress can literally just throw somebody in jail, the same way a judge would for defying a judge’s orders. So how would that work, and is that a possible thing that needs to be revived and taken a little bit more seriously in this situation, in this context where you have a recalcitrant executive branch?

Chafetz: Yeah, absolutely.

So, one thing I will say is about the way that the chambers now try to go about enforcing their subpoenas to the executive branch when the executive branch doesn’t want to comply. If we’re talking about subpoenas to private parties, even when there’s different parties controlling [Congress and the White House], those will often get prosecuted by the Department of Justice, often because they’re not in politically divisive situations.

But in situations where DOJ doesn’t want to prosecute under the contempt of Congress statute—which, by the way, it has a legal requirement that it prosecute; It says that they “shall” prosecute. Nevertheless, they frequently choose not to when the subpoena is directed at someone in the administration.

So the other thing that Congress has been doing in recent decades is civil litigation. And civil litigation, I think, is a complete fool’s errand, and I’ve been arguing this since 2008 for two reasons. One, it’s just an outright statement of congressional weakness. When Congress issues a subpoena, the target of the subpoena has an obligation to comply. But here, Congress is saying, “We’re going to issue you a subpoena that you have an obligation to comply with, and then we’re going to go run to a federal judge and make that federal judge tell you you have an obligation to comply”—which suggests that even Congress is saying, “Well, people may not listen to us. We’re just Congress. But they’ll listen to some federal district judge.” That’s turning our constitutional scheme upside down already. Congress is Article I.

But on a more practical level, attempts at civilly enforcing congressional subpoenas never work. The reason for that is that they just take too long. Even when the ultimate decision is in Congress’s favor, it always comes too late. So in the George W. Bush administration, there were the subpoenas to Harriet Myers and Josh Bolton. That case doesn’t get resolved until the Obama administration. In the Obama administration, there’s the subpoenas to Eric Holder. That civil litigation doesn’t get resolved until the Trump administration. In the first Trump administration, there are a whole bunch of subpoenas. None of those cases get definitively resolved until the Biden administration.

There is no example in the 21st century of civil litigation of a subpoena actually occurring in a timely enough fashion to allow Congress to oversee the administration that was in power when the subpoena was issued. They’re simply not working even when Congress, quote unquote, “wins” the court case.

So I think that does bring us to inherent contempt. Inherent contempt was more widely used in the 19th century. It has been used at least twice against executive branch officials. So in the late 19th century, it was used against the United States minister to China, who Congress thought was engaged in corruption. In the early 20th century, it was used against a U.S. attorney in New York. But in both cases, Congress actually arrested an executive branch official itself. And Congress still has that power.

Now, I think there are also other ways that Congress could go about enforcing its subpoenas itself. And again, these all come back to the mechanisms we’ve already talked about. The Senate could refuse to confirm executive branch officials as long as some executive branch official was in contempt of Congress. Congress could also pass riders refusing to pay salaries of officials who were in contempt of Congress, or perhaps even defunding the sort of subunit that those people work in. It wasn’t a coincidence that my example earlier was defund the White House Counsel’s Office. It could go after the entity that’s making up these specious reasons for denying congressional power. It could defund the White House Counsel’s Office as long as it’s making these ridiculous arguments about why executive branch officials don’t have to comply with congressional subpoenas.

So even short of sending the sergeant at arms out to arrest someone, it could use other tools at its disposal. It could tie them into the subpoena power and use them as a means of making congressional oversight more effective.

Craig: Definitely, though the sergeant at arms going out and arresting, you know, Pam Bondi or Kristi Noem would certainly have entertainment value. It’d probably attract public attention. But no, that’s a good point that all these other avenues need to be taken more seriously because that was a big frustration in the first Trump administration—the way that litigation dragged on to the point where it’s moot. There’s a new president now, so who cares?

Chafetz: You could even imagine a standing rule in, say, the House of Representatives that makes it out of order to appropriate any money to pay the salary of any executive branch official who’s in contempt. Now, the point of order can be waived. That could happen, but it would require people on the House floor to affirmatively vote to pay the salary of someone who was in that moment in contempt of Congress. And I think that at the margins might have some effect.

Craig: That’s pretty potent, too.

So, on the Senate confirmation powers, we’ve seen a lot of disappointment in terms of the current GOP majority. There was hope for some of the more moderates, Susan Collins or Bill Cassidy or Lisa Murkowski or John Curtis or some of these people would at least be more of a brake on the worst of the Cabinet picks. And a lot of those went through, but there has been some success.

I mean, even right now, as broadly subservient as this Congress has been to Trump, there have been some nominees that have failed and had to be withdrawn because the Senate was pushing back on them. But we’ve seen a lot of shenanigans—and this is one of those things that predates Trump but has now gotten worse under Trump—of using acting or interim appointments under the relevant statutes that allow for that, like the Vacancies Reform Act.

We’ve seen them do things like toy with the timeline so that you can stack together these 180-day—or whatever it is—appointments, and just keep these offices going without subjecting them to Senate confirmation. So other than reforming the law, which obviously also needs to be done at some point when you have either a trifecta or a veto-proof majority, how can the Senate act on this? Particularly the Senate, but I guess the House could potentially take an interest in it, too—to deal with this problem where they’re just doing this end run around the Senate in terms of who’s actually in all these various executive offices that are supposed to be confirmed by the Senate.

Chafetz: Yeah, I mean, it’s a huge problem. And there are really very limited ways that Congress can deal with it.

You know, one interesting thing that has happened for most of the 21st century, regardless of who’s controlling the chambers, is the use of pro forma sessions to basically take away recess appointments as a presidential tool. That’s been a really interesting bipartisan consensus that we’re just not going to allow presidents to do recess appointments. So that was one way of trying to push back against this.

But then, you’re right, what presidents have done is turned to acting and interim appointments. Frankly, there are real limits to what Congress can do about this, short of … I think one piece of a post-Trump reform package needs to be serious reform of the Federal Vacancies Reform Act. And I would commend to all of your listeners Anne Joseph O’Connell’s work on this.

But in the interim, the tools that Congress has available to it are the same ones we’ve been talking about. So you can imagine an appropriations rider saying no funds shall be used to pay the salary of an acting director of any agency who’s in an office for more than 60 days, or something like that. But in some sense, there’s fairly limited power that Congress has by itself to sort of stymie these end runs.

Craig: So when you read the Framers, the Federalist Papers and sources like that, you see they really thought and talked a lot about impeachment as a live, viable, active check on both presidents and other executive officers.

But, of course, we’ve seen in practice that that two-thirds supermajority to convict has made it very difficult with partisan dynamics. I mean, no president has ever been convicted in an impeachment. I guess you can credit Nixon’s resignation to it. And there have been only two impeachments of other executive branch officials, Cabinet secretaries, and both of those failed. One of them was just [in the] last Congress of Mayorkas. And the Senate shot that down, which we might agree with on the merits.

But still, assuming we don’t have the will yet or the ability to pass a constitutional amendment, to kind of completely overhaul impeachment and make it more viable, what do you think about the argument that has been made that it’s still valuable as a political tool in ways that can and should be used? And I guess hanging over that is the implicit context of: Should Dems impeach Trump again, or maybe impeach somebody else in the executive branch next time.

Hypothetically, if you were going to move forward with that to maximize the political value of impeachment as a stick to hit the president with when he’s misbehaving, even if he ultimately gets acquitted by the Senate, what are some of the options there for what Congress can do?

Chafetz: I do think that impeachment remains a really important political tool. One reason for that is simply that even when the person is acquitted in the Senate … let’s just focus on presidential impeachments for now. Even when the president is acquitted in the Senate, it takes a significant toll on their administration.

So, Andrew Johnson winds up cutting a deal, probably a just straight-up corrupt deal to get acquitted in his Senate trial, but it hangs over the rest of his presidency. He basically makes himself irrelevant for the last part of his presidency after his acquittal.

Bill Clinton, his administration is sort of tied up in knots, and he never really recovers the policy momentum that he had had before that. Even in the Trump impeachments, I think they did exact a meaningful toll on his approval ratings and on his presidency.

Now, that possibility is even greater when you have majorities in both chambers. Because if you have a majority in the House, but don’t have a majority in the Senate, then the Senate can hold only a very cursory trial and basically short circuit the process. But if you have majorities in both chambers, then this will be a drawn out, months-long public proceeding with everyone watching it.

And this goes back to what I was saying about the Jan. 6 committee. These things are going to draw a huge amount of attention. If you stage manage them right, they can really have a significant impact on the political standing of the president and of the president’s co-partisans. So I think it can be a useful tool against a president, even if you don’t think you’re going to get a conviction.

The other thing I would say about impeachment, and this goes more to Cabinet officers, judges, people like that, is that the infrequency of conviction shouldn’t make us think that it’s not having a significant impact. It’s just that if you’re a Cabinet officer, and you commit rampant corruption, you’re either going to be forced to resign or the president’s going to fire you under most circumstances. And part of that is the impeachment mechanism that’s hanging over all of that. If there were no mechanism by which Congress could remove you, maybe the president would be less inclined to force you out, or maybe you’d be less inclined to resign. But because there is, people resign.

So we see this with, why have so many federal judges resigned when they’ve gotten caught being corrupt? Well, it’s because they thought there was a decent likelihood that they would wind up getting impeached. Now, obviously, a number of federal judges haven’t resigned when they got caught being corrupt, and many of them have been impeached and convicted. So we shouldn’t think that the only work impeachment does is when someone gets convicted, or even when they get impeached in the first place. People are always operating in its shadow.

Craig: I wanted to touch on one aspect of this, which is the rules in each house. So, the Constitution gives each house the power to set its own rules. That’s a very broad and absolute power with very rare exceptions. Each house can run itself however it wants. But there’s been a couple of complaints about the way the rules have developed.

One is that this kind of accretion over the centuries has become kind of inscrutable and complex in a way that even the members themselves don’t fully understand. Like, they don’t know how to use the powers that they have, the procedural tools that are actually at their disposal.

The other complaint is that there’s been a concentration of power in the leadership. And the example we’ve just seen very recently that was very stark, that came to mind, was when Mike Johnson kept delaying bringing the House back. I mean, they were doing pro forma sessions, but as we speak of it, the House was effectively out of town and didn’t come back. And he kept tacking on these one week district work periods that the rules let him declare.

But that’s not a power the speaker has usually had. That’s a very new thing. It was originally a kind of practical thing for Covid, and then they just added it to the rules. But that’s, I think, an example.

What do you think of that point, both on the rules just need a simplification and modernization [point], and on the point that they’ve really concentrated too much power in the speaker and the majority party leadership?

Chafetz: On the rules being too complicated, I guess I’m not terribly sympathetic to that. They are complicated. Rules governing complex institutions are often complicated. That’s why you have people who are experts in the rules, right? And so in the civil litigation system, we call those people lawyers. In the congressional system, we call those people parliamentarians. They have plenty of staff who can advise them on how the rules work. If members are looking for procedural mechanisms to do what they want to do, they can go to the parliamentarian’s office, they can go to their own staff, they can get good advice about that.

On the concentration of power, especially in the House of Representatives, I tend to think of both chambers as sort of having this sort of sine wave across history of concentration and then diffusion of power. For much of the 20th century, power in the House was really quite diffuse. You had a real high point of concentration of power from the 1880s to 1912, culminating in Speaker Joe Cannon, who was referred to as Czar Cannon. And then in 1912, there’s a cross-party progressive coalition that sort of smacks him down.

From 1912, 1913, through the, say, 1970s, you have a real diffusion of power in the House. And this wasn’t necessarily a good thing. What this meant was that the chairs of committees exercised a lot of power. And because a lot of committees were chaired by Southern Democrats, that meant that racists exercised a disproportionate amount of power.

Then, starting in the late 1950s with the Democratic Study Group, you have these younger members who come in, many of them much more liberal Democrats, who start trying to think about how we can wrest power away from these older Southern Democrats. And you start getting reforms in that direction.

But wresting power away from the committee chairs does, in practice, mean sending that power somewhere else. So you start to get a sort of centralization of power. In some sense, the high point of that is the Gingrich speakership, where just a tremendous amount of power gets concentrated in the speaker. And we’re still living in that age. Nancy Pelosi was a tremendously powerful speaker.

But I think we’ve also seen in recent years some steps away from that. We’ve seen a number of Republican speakers deposed by their own conference—not formally deposed, but basically kicked out by their own conference. Boehner, then Ryan, then McCarthy. I think we’re at a moment where we’re seeing the rumblings from backbenchers in both parties, the kinds of rumblings that have in past moments in history preceded a decentralizing transition.

We might be at an inflection point, we might not, who knows. These are things that are only obvious in retrospect. But, for example, the House re-adopts its rules from scratch at the beginning of each new Congress. I would not be shocked if the rules at the beginning of the 120th Congress do not give the speaker—regardless of which party is in control—the unilateral authority to keep the House in district work period for as long as he or she wants to. As you said, that was not intended to create the kind of situation that Johnson just used it for. That was intended to be good government, make things work more efficiently, and has now been seen to have this potential for abuse. I’d be very surprised if members of whoever’s in the majority at the beginning of the next Congress don’t insist on taking that back.

Craig: Hanging over all this, these are political fights, fundamentally. And Congress is notoriously unpopular. As you look through the surveys, you get different numbers, but it’s generally pretty rock bottom approval ratings. And even within each party, the congressional party … so, if you ask Republican voters, “What do you think of the Republicans in Congress?,” and the same on the Democratic side, they have pretty bad numbers.

How do we approach this need to build up the political capital? If you’re going to go out on the stump speech and say, “I want to empower Congress,” and everybody hates Congress, that’s kind of a problem.

In particular, I wanted to get your thoughts on a phenomenon that’s kind of come and gone. Maybe it’s a little bit like that sine wave. Individual members of Congress who become breakout stars, so to speak, who become very prominent national political figures beyond just their district or state, how can they or other candidates running for Congress, in the electoral and public opinion context, solve this problem, so that reining in executive power and rebuilding a more functional Congress and all the rest of it is a politically viable project?

Chafetz: That’s a great and really complicated and knotty set of issues. I think the first thing to note is that Americans have always hated Congress, going back to the 18th century. So, John Adams wrote in a letter to Abigail Adams that, “the business of Congress is dullness, flatness, and insipidity itself.” Americans have always complained about Congress.

There’s this great book by John Hibbing and Elizabeth Theiss-Morse, two political scientists, called Congress as Public Enemy, that goes into this phenomenon. Both in terms of public opinion surveys and in terms of some experimental results that they have. And basically their conclusion, which I think is right, is that Americans say they like democracy, but they recoil from how democracy actually works. They say they want compromise, but then they hate what they call deal-making or how the sausage gets made.

And in some sense, there’s just no solution to that, right? Legislatures, by their nature, are more public than either of the two branches, and they’re more populous than either of the other two branches, which means that the way legislatures are going to work is that they are going to publicly fight and squabble and make compromises and make deals. And that, it turns out, is what Americans don’t like to see. So that is a problem.

I think there are a couple of things that we can do to mitigate that problem. One is, it’s a sort of truism in political science that Americans hate Congress but love their member of Congress. You see this in the incredibly high reelection rates. And so members can serve as sort of validators to their constituents who trust them, and say, “Look, Congress as an institution needs to be empowered.”

Then this goes to what you were saying, which is that there are some members who have national constituencies. And this has always been true as well, whether we’re talking about Clay and Webster in the middle of the 19th century, whether we’re talking about Gerald Nye in the 1920s, whether we’re talking about Joe McCarthy. There have long been members [like that]. And today we might think of people like Ocasio-Cortez. We might think of people like Liz Warren. We might think of people like Marjorie Taylor Greene, who have these national constituencies.

To the extent that they can serve as validators of the institution and say, “Hey, look, this is an important congressional prerogative, and you, the American people, ought to support Congress in its exercise of power, because that is how our constitutional system ought to work. That is how our constitutional system works best. And look at what happens when we allow presidents to exercise too much unilateral power.”

Now, that requires two things from them. It requires those members to resist what has been an almost overwhelming bipartisan pressure since the late 1970s to run against Washington. It requires them to say, “Actually, this institution is good and worth standing up for,” rather than saying the cheap, easy thing, which is talking about the swamp or talking about how everyone in Washington is hopeless and corrupt or something like that. It requires them to actually do the work of pushing back against what their constituents have now been told for decades.

The UnPopulist Needs Your Support

So in the same way that we need people to stand up and say, “Bureaucrats are good, actually,” we need people to do the hard work of standing up and saying, “Congress is good, actually.” The way that will be most convincing is if they can do it in ways that cross-party lines. If they can do it in ways that they say, “I am standing up for Congress as an institution, even if in this moment that means protecting someone on the other side, or protecting a policy win for the other side, or if it means that a policy I don’t like nevertheless has a better chance of passing. But what I’m doing in that is making this institution, which we think overall is good for the American people, work better.”

That’s incredibly hard to do, especially in a moment of high affective polarization, where Americans as a whole hate the other party more than they like their own party, which can make any attempt to stand on principle in a way that benefits the other party seem like an act of rank betrayal.

Craig: Setting to one side, which is always dangerous, the political viability analysis of, you know, do we have the votes? Could we pass a law? Could we maybe even amend the Constitution? Kind of just bracketing that off, what should we think of as the end goal? What are we trying to get to here in terms of an empowered Congress?

I mean, in the political science literature, there’s a lot of denigration of presidential systems as a whole. It’s kind of prone to democratic backsliding and authoritarianism. I don’t think we’re necessarily going to go that far. We’re never going to have a parliamentary Westminster style here.

But thinking outside the box, what sort of divisions of power should we ideally want to get to? Is there a limit in terms of how far we want to push this? To what degree do we want to still have a politically independent executive that serves its role as a check on Congress? Obviously, there’s the veto power, but there’s the control over the executive branch, all these things. Or should we take the view that Congress is the elected representatives of the people? And they really should have primary authority in deciding what our laws are going to be and how our government’s going to run?

Chafetz: I’m not sure there’s anything actually inconsistent in the two ways you framed that. It’s true that we have the weird prism of the Electoral College. That affects how representative we can really say the president is. But we also have the weird prisms of equal representation in the Senate and gerrymandering in the House that affect how representative we can actually claim that Congress is.

I think the American constitutional structure suggests that representation of the American people isn’t reposed in any one of these institutions, but actually arises out of the interaction among them. They’re all structured differently. They all have different constituencies. They’ll have different time horizons. I think the ways that they interact with one another is what actually produces a better kind of representation than we would get from any one of them acting alone.

That said, the main power that the Constitution gives the president is the veto power. I think Congress can basically structure the executive branch, for example, however it wants to. Now, let me be clear. This has very little to do with what the current Supreme Court would say about any of this. The current Supreme Court will disagree with me about almost all of this. But Congress can basically structure the other branches, including the judiciary, but importantly, the executive, however it wants to. And the main check on that is that the president can veto the laws trying to structure the executive branch. So you either need a president to go along with it, or you need two-thirds supermajorities in both chambers.

By statute, I think Congress can do more or less anything short of taking away the veto or taking away the pardon power or things like that. But in terms of making executive branch officials independent of presidential control or independent of presidential removal authority, I think there’s absolutely no reason to think that Congress can’t do that. Again, the Supreme Court says there are all kinds of reasons that it has made up. But I think if you’re asking what do we want our constitutional order to look like, I think what we want is it to look like is that we have a purely statutory presidency. That is to say, the president can exercise those and pretty much only those powers that are accorded to it by statute.

And I said “pretty much” only because, yes, it’s got a few very specific powers in the Constitution. It’s got the veto, it’s got the pardon, but even things like the commander-in-chief power, what does the “commander-in-chief” mean? Congress actually has more military powers given to it in Article I than the president does in Article II. And yet we’ve developed this myth that military matters are chiefly in the purview of the presidency. Why? Why is that? The only military power given to the president is the commander-in-chief power, whereas all the other military powers are given to Congress.

And these were all powers that, by the way, were exercised by the crown in Britain. That’s why Article I, Section 8 actually lists these powers as powers of Congress. Because it wants to make clear that even though you might be used to thinking of these as crown powers, actually we’re going to take them away from the executive and give them to Congress.

So, end of the day, I think the presidency should be thought of as primarily statutory. Congress should be thinking, “How do we want to structure the executive, and how much power do we want to give the executive?” And I’m hoping that the post-Trump presidency will be a time for that kind of reflection, in the same way that there was that kind of reflection after the Nixon presidency.

You know, many of the post-Watergate reforms are regarded as not having been entirely successful. I think we can learn some lessons from that. And I also think, going back to an earlier discussion, one of the reasons we see them today as having been not entirely successful is because the Supreme Court knocked the legs out from under them with the Chadha decision. But I think if we have a similar moment of trying to rethink our constitutional order after the Trump presidency, we can learn from what happened after the Nixon presidency. We ought to aspire to have a similar sort of reflective moment.

Craig: Excellent. Thank you, Josh, for joining us. This has been a great discussion, and I definitely highly recommend your book on all this and all your other work. Because, I think, particularly over the course of the next few years, as we get through this slog, there’s going to be a lot of things that hadn’t necessarily gotten a ton of thought before in normal times, but that are coming up now, and are going to be live issues in ways that are not expected.

And ultimately, exactly that—there is going to be a day after, and we have to start thinking now about what we want to do in that moment, when there is that opportunity for big institutional reforms, and Congress is going to be a central part of that. So thank you for taking the time, and I look forward to seeing all your ongoing commentary and work on this.

Chafetz: Thank you so much for having me.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

In recent weeks, the Trump administration has ordered members of the military and the National Guard onto the streets of American cities, including Los Angeles, Portland, and Chicago. The purported reasons for these decisions have been to protect federal agents and federal property, but the threat of using the troops for general domestic law enforcement looms large, with President Trump repeatedly threatening to do just that.

To be sure, using U.S. soldiers domestically has its role. They were essential, for instance, in enforcing federal court orders during the Civil Rights Era of the 1950s and 1960s. But those targeted uses were not general deployments of soldiers for standard crime control—something alien to the American political ethos.

Let’s be clear: Setting soldiers up as beat cops is a bad idea, and it’s usually illegal under American law as the The UnPopulist, among others, has detailed recently. What I want to do is explore another major reason not to use federal soldiers for local law enforcement.

It’s often observed, correctly, that the way we train the military, whose mission is typically to destroy, kill, or incapacitate, is not compatible with domestic law enforcement, which deals with the American people, who are presumed innocent and guaranteed a range of personal rights. Although the military is expected to obey the constitutionally guaranteed rights of citizens when deployed domestically (as Brookings Institution’s Scott Anderson has argued on this site), this mismatch between military and domestic goals makes it more likely that these rights would be violated when the law is enforced by military personnel, rather than traditional police and domestic government agents.

The concern over such uses of the military is larger than that, however: Under American law, when members of the military violate citizens’ rights in law enforcement, it is much harder, if not impossible, for those victims to receive monetary compensation for the harms they suffer than it is when they suffer wrongs by state or local police—though it’s already hard enough in those cases. Indeed, using the military in domestic law is entirely incompatible with our nation’s current remedial legal architecture.

Section 1983 Loophole

To see why requires a review of that architecture, looking at each of its elements—three federal provisions and two types of state provisions—in turn. I should add, however, that this review concerns civil liability and making injured people whole. Soldiers who act wrongly can still be—unless pardoned, of course—criminally prosecuted, at least by a future presidential administration. State criminal prosecution may be possible as well (and not subject to presidential pardon). But while such prosecutions may help render justice, they can be cold comfort to people who need compensation for the harms they’ve suffered.

A first key federal statute for providing victims with compensation for wrongs by law enforcement officials comes from the administration of President—and, ironically for this story, General—Ulysses S. Grant: the Civil Rights Act of 1871, also known as The KKK Act. This legislation targeted both state government-sponsored terror and organized private violence—especially the Ku Klux Klan’s—against former slaves, other Blacks, and their white allies, particularly in the South.

One important surviving provision of that legislation is 42 U.S.C. § 1983, frequently referred to as “Section 1983.” This statute was long ignored, but since the Supreme Court essentially rebooted it in 1961, it has allowed individuals to sue state and local officials, including law enforcement officers, for compensation when those officials, acting “under color” of state law, violate the individual’s rights under the federal constitution.

There are all kinds of pitfalls for someone seeking redress under Section 1983 (including the absurdly restrictive court doctrine of “qualified immunity”). Still, Section 1983 has teeth. It was used, for example, in civil suits by the families of George Floyd and Tyre Nichols. Often it is the only practical way to even try to obtain justice for victims of law enforcement abuses and remedy their injuries.

Now let’s apply the remedy offered under Section 1983 to U.S. soldiers working as cops. (For this discussion, I’ll set aside the legality of deploying soldiers in this way and the need to reform the unfortunately porous Posse Comitatus Act, which was designed to prevent such domestic deployments of the military barring exceptional circumstances.) If, say, a soldier unconstitutionally assaulted a driver while making a routine traffic stop, how would the driver’s lawsuit fare in court under Section 1983?

In a topsy-turvy world where federal soldiers are enforcing state law, the offending soldier would arguably be liable for assaulting the driver under Section 1983. After all, the soldier would be acting “under color” of state, not federal, law when engaged in traffic enforcement.

But the legal battle would hardly end there. Federal government lawyers would undoubtedly argue that since the soldier was deployed under federal law in the first place, he or she wasn’t acting under color of state law, and Section 1983 doesn’t apply. Indeed, this question of the soldier’s status, state or federal, is a wild and uncertain one that exists only in theoretical law school exams and the mind-bending behavior of the Trump administration.

Things don’t get any easier for our injured driver if we’re talking about an assault by a member of the National Guard instead of a soldier in a core U.S. military service, such as the Army. The National Guard has a gray existence between state and federal law. In each state, the guard is nominally under the direction of the governor, but it also stands ready for “federalization” by the president at any moment. Indeed, the president can use the Guard under two different legal regimes, which are often called “Title 10” or “Title 32.” The former is more of a total “federalization” than the latter, but in either case, national guardsmen would likely be treated as federal actors. The courts increasingly have a “one drop rule” on federalization, with the slightest federal participation in a process rendering the people executing the policy “federal personnel.” In other words, the soldier, if a guardsman, would likely be seen as acting under federal law and not subject to Section 1983.

Uncle Sam Giveth and Then Taketh Away Other Legal Remedies

There are two more federal avenues to consider. One is the Federal Tort Claims Act, first enacted by Congress in 1946 and amended in the years since. This legislation provides a legal path to compensation for victims of harmful or illegal actions—“torts”—by federal employees acting in their official capacity (though it does not authorize lawsuits for violating the victim’s federal constitutional rights). It is a cumbersome procedure, beginning with an administrative claims process followed by litigation in federal court. It has many exceptions, but it does allow some victims to obtain compensation from the federal government. Unfortunately, it now prohibits citizens’ suing federal officials in state courts for alleged violations of state law, requiring such claims to be brought only in federal court, and only against the U.S. government, not the officials themselves. These restrictions take away previously available legal avenues for relief.

Another legal pathway for compensation, separate from the FTCA, was added in 1971 by the Supreme Court for victims seeking redress for harms by federal officers. In Bivens v. Six Unnamed Federal Agents, the court allowed citizens to file suits against federal agents in federal court when those agents violated one of a few specific rights granted by the Constitution. (Victims of more mundane nonconstitutional wrongs, such as negligence, could still in some cases use the FTCA.) Since the 1980s, however, the Supreme Court has progressively cut back on the legally permitted uses of its Bivens ruling—so much so that now the decision almost does not exist.

So what happens, then, if a citizen attempts to use the Bivens doctrine or the FTCA to sue a soldier deployed in their city for an alleged violation of their rights under state or federal law during, say, a traffic stop?

Not much that’s helpful, if anything. As mentioned above, a claim under Bivens is now a nonstarter, preventing a federal constitutional claim in federal court.

But what if the citizen simply sues the U.S. government under the FTCA, raising, for example, a battery claim?

The FTCA appears to allow lawsuits against soldiers—not just federal agents like ICE officers—if a soldier acts “within the scope” of his or her duties when the incident occurred. Unfortunately, the FTCA’s loopholes provide federal attorneys with an array of technical stratagems to have the case thrown out. In particular, federal lawyers would likely claim the soldier was exercising “discretion” granted by his or her government position during the incident—an ostensibly plausible argument that would shield the government from lawsuits under the FTCA.

Worse, if the victim’s attorney chose to avoid the FTCA and instead file a simple battery claim in state court, federal attorneys would likely argue, as they have in other cases, that the federal employee was acting within the scope of their duties, that the FTCA thus applied, and that the lawsuit should therefore be disqualified under one of the loopholes discussed above. In effect, the FTCA is a briar patch federal attorneys want to be thrown into—and they usually win.

Upgrade to Paid

Moreover, the FTCA would contain yet another wrinkle in our scenario with the soldier: The act precludes any “claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” (Note that this language likely includes the National Guard, which is “military.”) What if President Trump declared that sending troops into a U.S. city for crime control is “war”?

He has, in fact, already done this, though he later walked it back. The next time, he might not. Would the federal courts then need to take this “declaration of war” at face value? In a case on a similar issue about deporting Venezuelan gang members, one dissenting federal appellate judge thought so, and his may not be the dissenting view much longer, since the case is being reconsidered. Soon, by the simple invocation of one word, the president might actually manage to exempt the entire military from the one law Congress has passed to give Americans a legal remedy for illegal acts by federal agents.

Relief in State Courts? Maybe

Let’s turn, finally, to state-level legal avenues. States have their own remedial laws for victims of government harms, but these are primarily focused on injuries caused by state and local government. Moreover, they rarely provide victims with better options than those under Section 1983, assuming they permit suits against federal agents at all.

Yet several states do furnish one other potential remedy for victims. When Congress amended the FTCA in 1988 to restrict plaintiffs’ legal options in state courts, it explicitly retained plaintiffs’ rights to sue federal officers over federal constitutional claims.

Four states have responded to this opening by enacting statutes where victims can directly sue federal employees in state court for violations of the U.S. Constitution. This approach has been called a “converse 1983”—that is, a sort of Section 1983 reversal in which state law protects citizens from violations of the U.S. Constitution by federal officials, instead of the other way around. These federal officials would include members of the military and the National Guard.

Whether “converse 1983s” are valid has yet to be tested; some argue that federal law preempts them. But we may know soon. California, Maine, Massachusetts, and New Jersey have enacted converse 1983s, and Illinois may soon join them with a limited version. If federal troops in Los Angeles or, say, Boston violate a city resident’s federal constitutional rights in the course of their duties, these converse 1983s may supply the resident with a reliable avenue of redress. That redress would become all the more valuable to residents if the troops began enforcing everyday state criminal laws—a situation where the frequency of law enforcement encounters between troops and residents would rapidly multiply, and where residents currently have no promising avenue of legal redress for violations of their rights.

But let’s be clear: The U.S. system of legal remedies isn’t ready for military deployments like these. Indeed, when a few untested state laws like converse 1983s may be Americans’ best hope for legal compensation when such deployments go wrong, we’re entering an era where concerns about “law and order” have themselves become threats to the broader system of law and order that protects Americans from harm.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

The power of the purse, the idea that matters of taxation and spending belong in the hands of a representative legislature, is the fundamental bedrock of the Anglo-American constitutional tradition. It was the basis of Parliament’s fight against the “personal rule” of Charles I. It was the rallying cry of the American Revolution—“no taxation without representation.” And it is firmly codified in the supreme law of the land, the Constitution. Article 1, Section 9, Clause 1 states plainly that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Over the years, Congress and successive presidents have wrangled over this control, with chief executives trying to assert more say over the federal government’s checkbook. But as with many other parts of the Constitution, the second Trump administration is taking matters to new levels. The shutdown might be over (for now), but we see in this latest round how a dysfunctional executive-legislative balance of spending powers can make governing harder and more contentious. It’s difficult to negotiate a bipartisan deal through Congress if one party, in control of the White House, can then disregard whatever it doesn’t like.

The administration has ignored laws Congress has enacted over the years that specify how the executive branch should approach allocating the funds that Congress appropriates. One, the Antideficiency Act, dates to the 19th century and ensures that agencies do not spend more than has been allocated to them. A second, the Impoundment Control Act (ICA), was enacted in 1974 and specifies exactly what the executive branch must do—including getting the consent of Congress—if it wishes to cancel funding the legislature has already allocated. So it’s not the case that Congress, historically, has done nothing to try to guard the appropriations power against encroachment—but we are seeing many of these measures are insufficient for a period of strong partisanship.

New Heights of Flouting

The specific incursions by the executive branch into Congress’s spending power have been legion—indeed, too legion to detail each here. But they have included attacks from both directions: The executive branch has withheld funds that Congress has told it to spend (underspending) and also has used resources for a purpose different from what Congress had allocated them for (misspending or overspending).

In the underspending context, the Government Accountability Office has responsibility for investigating allegations that the president has elected not to spend funds in violation of the ICA. While prior presidents have seen actions investigated by the agency, the number of GAO opinions identifying violations—seven as of this writing—is a marked increase. And that is likely a significant undercount, since it only includes actions on which GAO has completed an investigation. But even within these seven, there are instances of grant cancellations (at NIH and FEMA), delays in the ability to access grant funds (from the Department of Education), delays in expenditures (at the Department of Transportation), and an attempt to cease most of the operations at a federal agency (the Institute of Museum and Library Sciences). Taken together, these actions represent an illustrative cross section of the types of underspending that the administration has undertaken to weaken Congress’s constitutional prerogative.

A key component of the administration’s strategy to underspend Congress’s intent has been to manipulate the timing of certain actions to do an end-run around congressional spending decisions. Many funds appropriated annually by Congress are available for just a single fiscal year, expiring at its conclusion on Sept. 30, at which point the money, absent successful litigation, disappears if not spent. The administration has sought to leverage this fact by using so-called “pocket rescissions.” These let a president kill funding authorized by Congress without the legislature having to formally weigh in and approve the cancellation.

There is a legal, if potentially destabilizing, way to do recissions and the administration used that method earlier this year. The president sent rescission requests to Congress to approve the cancellation of funds, and Congress agreed; the practice still threatens congressional power because it allows simple majorities to undo bipartisan appropriations which had previously cleared the 60-vote filibuster threshold in the Senate.

But for a set of foreign aid funds, the administration gamed the process in a way that the GAO has determined is illegal. This “pocket rescission” works by first hitting the pause button on spending by submitting a rescission request to Congress, but doing so with less than 45 days before the funding’s expiration date. This means that if Congress does not affirmatively act and require the spending within that time period, the funds can expire without being spent nor Congress agreeing not to spend them. The Supreme Court allowed the expiration date for the funds to pass without weighing in on the merits of whether this practice is legal, and litigation continues. But even if the high court ultimately rules against the Trump administration, the circuitous path to satisfying congressional intent illustrates the limits of using the courts as a timely backstop to congressional power.

In addition to proposing the explicit cancellation of specific funds, evidence also suggests that the administration purposefully slow-walked the process of getting other money out the door. One important step in the process of spending federal resources is known as “obligation,” or the point at which an agency incurs a legally binding commitment to spend money, like a contract to purchase supplies. Data on obligations during the early months of the Trump administration indicates that agencies committed substantially smaller amounts than would be expected based on historical trends, including for a set of programs the administration would like to eliminate entirely.

Administration officials have also sought to use a key component of the budget execution process, known as apportionments, to manipulate the flow of the funds that Congress has approved. To ensure that agencies do not burn through their annual appropriations too quickly, and that funds allocated over multiple years are used effectively, the Office of Management and Budget (OMB) is responsible for signing off on agencies’ ability to access the resources that Congress has appropriated. Over the course of this year, administration officials have, with a frequency not seen in prior administrations, required agencies to submit “spending plans” that explain how they intend to use the funds in “align[ment] with Administration priorities” in order to be able to spend their appropriated funds. In other words, the administration is attempting to place additional requirements on spending beyond those already outlined by Congress. (The administration also illegally hid this practice and other aspects of the apportionment process from the public by removing, in March, a mandated public web site that discloses apportionment information. It was restored in July only after a successful court case.)

We have also seen the administration mount a visible attack on the second pillar of the appropriations power—not just refusing to spend money Congress has directed, but spending funds in ways Congress has not authorized. This is an even more fundamental, and potentially dangerous, violation of the power of the purse. The most visible has been the recent decision, during the lapse in appropriations in Oct. and Nov., to use money previously appropriated for research and development activity at the Department of Defense to issue paychecks to military personnel.

(In light of the English and colonial-era history, the Framers were particularly keen on appropriations as a check on the military: a special rule in the Constitution prohibits appropriations “[t]o raise and support Armies” from lasting longer than two years.)

There are a range of possible reforms Congress could and should adopt to limit this illegal behavior. These include expressly prohibiting pocket rescissions, reforming the apportionment process (including, potentially, taking the apportionment authority from OMB and giving it to Congress), and making it easier for affected parties to sue in the event of a grant termination. And undergirding it all, Congress needs to be willing to proactively defend its prerogatives even when the same party controls the White House and both chambers.

Coequal No More

Fundamentally, restraining the executive is a political problem, not a procedural one. The current statutory limits on underspending were enacted in response to specific activities by President Nixon in an era when members of Congress more jealously guarded their collective power, and how it might be wielded against a president of either party. But even in a period of greater institutional patriotism, many Republicans opposed placing new guardrails around impoundment; even then, members who favored lower spending saw the tool as a potentially useful one. For some fiscal conservatives, the prospect of impoundment can seem tempting, akin to a line-item veto, even as it inflates presidential control at the expense of Congress and undermines the constitutional separation of powers.

In the current Congress, collective action as motivated by anything other than clear partisan motivations is hard to envision. Indeed, when Republican members of Congress have found that the executive branch is targeting programs of particular importance to their states and districts, their response has generally not been to engage in coalition-building to use Congress’s institutional power to respond. Rather, it has been to use their individual influence to persuade the executive branch not to take action that would hurt their constituents. This completely inverts the constitutional scheme, reducing senators and representatives to mere supplicants of the administration, begging for favors, instead of acting like members of the body with the relevant power.

In March, for example, Rep. Tom Cole (R-Okla.) released a statement claiming credit for “working closely with DOGE and the Administration” to keep three federal facilities in Oklahoma from closing. In July, Senator Mike Rounds (R-S.D.) similarly touted the fact that he “worked with the Trump administration to find unused climate change money that will be reallocated to continue grants to tribal radio stations”—support that was under threat as a result of the administration’s ultimately successful request to rescind funds for the Corporation for Public Broadcasting. (Importantly, it’s not clear whether the deal Rounds secured will actually address the underlying problem of funding cuts for tribal radio over the long term.)

As long as members who find the administration’s actions objectionable find it possible to go directly to the White House to resolve the concerns that are targeting their specific constituents—and finding at least enough success that they can claim some credit for “fixing” the issue—there’s little incentive to pursue the harder, collective action that would reassert Congress’s institutional power. In order to block this easy way out that allows members of Congress to defect from defending Congress’s authority, it is essential to block the executive branch from having so much discretion at all. At the end of the day, congressional appropriations aren’t just a budget spreadsheet: they are laws, and the rule of law must be upheld.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

A transcript of today’s podcast appears below. It has been edited for flow and clarity.

Andy Craig: Welcome to The Reconstruction Agenda. I’m Andy Craig.

At The UnPopulist, we do a lot of tracking of the daily storm of assaults on freedom and democracy. But sometimes you need to zoom out, take a breath, and look at the bigger picture. So every month I’ll sit down with people who actually know the terrain—scholars, historians, experts—not just pundits with hot takes and opinions.

We’ll explore how we got here and more importantly, where we go next. In other words, a reconstruction of what’s happened; a forensic analysis, but with an eye to rebuilding our institutions for the future.

The Constitution’s text provides that the president “shall appoint by and with the advice and consent of the Senate” various officers, and allows Congress to exempt some inferior officers within the executive branch from that requirement. But the Constitution is silent on who can fire them—i.e., the removal power.

So now we have a president whose catchphrase is, “you’re fired”—and he’s putting that to the test. Emboldened by the Supreme Court, Trump has sought to fire, among others, a member of the Federal Trade Commission and a member of the Federal Reserve Board.

But this hasn’t always been how American government worked. There’s a long history of Congress trying to constrain who the president can fire and under what circumstances, most often by requiring “for cause” protections for certain quasi-independent agencies. Most recently, the Supreme Court has taken up the issue of Trump’s attempted firing of an FTC commissioner. Oral arguments are scheduled for later this year in which the court might do what it has long hinted at: overturning the New Deal-era case Humphrey’s Executor, which also involved a president, in that case FDR, trying to fire an FTC commissioner over policy disagreements.

But underlying Humphrey’s is another little-known case that helped give us the modern supercharged presidency. That’s Myers v. United States, a 1926 opinion written by Chief Justice William Howard Taft, whom you might remember from your bar trivia as the only ex-president to serve on the Supreme Court. As our guest today has argued persuasively, Myers has a lot of problems.

So, to help unpack this issue, I’m happy to be joined today by Noah Rosenblum, Associate Professor of Law at New York University, specializing in constitutional law and legal history, including this exact question. Noah, thanks for joining us.

Noah Rosenblum: Thanks for having me on, Andy.

Craig: As usual with these things, we have to start in Philadelphia in 1787, where the text of the Constitution is unhelpfully silent. This seems like a pretty big oversight. So I guess an initial question is: Why doesn’t the Constitution, which has all these detailed procedures about who can appoint various officers, not say anything about who can fire them?

Rosenblum: It’s a great question, and something that constitutional theorists and legal historians have been debating for a very long time. My co-author on that article about Myers observed that, based on the timing, it seems like they were probably ready to get out of Philadelphia. It was hot. They had been there a long time. They all wanted to get home.

The thing we have to remember, from where we are now, is that when they were drafting the Constitution, they were putting together a document that was part of a culture that is just super different from the highly text-specific, lawyerly culture that we have subsequently developed. And the presidency is a particular site where those differences become apparent.

As people who listen to this podcast may know, up until pretty late in the Constitutional Convention, the election of the president was going to happen by the House of Representatives. And while James Wilson had proposed direct election of the president, he was roundly defeated and his suggestion was rejected. It was really important to people in Philadelphia that the president not be elected by the people. That was one of their key concerns to prevent something like a demagogue.

Meanwhile, when it came to what had been the royal prerogative powers, those were apportioned differently across the different branches and to different actors. Michael McConnell, the wonderful professor at Stanford, has written about this in his great book, The President Who Would Not Be King.

The way that the Constitution was assembled was a lot less, “let’s specify in specific textual detail the contents of three and only three branches, each with carefully defined powers.” If they’d done that, it would obviously be super useful for the kind of legal separation-of-powers formalism that lawyers have to practice before the Supreme Court today. But that just wasn’t what they thought they were trying to do. They were, in the famous phrase, creating a revolution in favor of government. They were trying to design a state that would be more efficacious than the Articles of Confederation. There were a lot of different pieces to that, but in their drafting process we see that the specific words mattered a lot less than the general structure.

As I recall, they leave a ton of stuff to the Committee on Style, after they’ve already made these substantive decisions. Gouverneur Morris changes some things in ways that may or may not be significant. Certainly at the time they were not understood to be fundamentally transformative, these phrases that lawyers today put a lot of weight on—for example, the difference in the Vesting Clauses between the Executive Power Clause and the Legislative and Judicial Vesting Clauses.

This is just a long way of saying that the past is another country. That hot summer in Philadelphia looked very different from what we might expect or want from a constitutional convention. My best guess, even though it’s unsatisfying, is that they genuinely just forgot, that they just didn’t think through the removal power question. They were rushing; they wanted to get out.

Just as you said, they clearly put a lot of thought into the appointments question. They also put a lot of thought into how much they wanted to specify about the structure of government. That’s the other thing that’s totally missing from the Constitution, right? There’s nothing about the removal power, but there’s also nothing about what the staff that’s going to be working to run the government is supposed to look like. But we know that they knew that there would be staff—both because there is this reference to the inferior officers (so, clearly they didn’t expect the president to do it all himself) and there’s the bit where the president gets to request the opinion in writing from the principal officers in each department (even though, of course, there’s not a single department specified in the Constitution). To this day, we don’t really know from the Constitution alone what makes somebody a principal officer.

They presumed all these things about how the government was going to work, but they didn’t put them in the Constitution. We know that when it comes to the executive administration, they thought about including more detail in the Constitution and then they took it out. One of the reasons for taking it out was because they wanted to leave it to the regular political process to decide what that structure would look like. They wanted the statutes to define what the departments would look like, and what the officers would be. So it stands to reason that one of the reasons they left the removal power out was to let it be defined via the ordinary political process—that is to say, through statute.

Craig: Well, that’s the Necessary and Proper Clause—the congressional power for filling in all the details—right? But they did run into this problem themselves pretty quickly. So, during the First Congress, they’re doing all these things: they’re creating the secretary of state, the secretary of treasury, these first departments. After George Washington is elected president, the first members of Congress have already been elected, but basically nothing else has spun up yet.

Later, we’ll get to how the Supreme Court has interpreted this—but it’s become known as what you refer to as the “so-called” Decision of 1789. So what was the Decision of 1789, and was it actually a decision at all?

Rosenblum: You framed that perfectly. Just as you said, it’s 1789; nothing’s been spun up. All you have is a president and a legislature and this document. The question you have to wrestle with is: What does this mean? How do you actually make a government work?

One of the first things they do is create the main departments of government—and they get into a pickle over exactly what the statutes defining those offices should say. So, the big ones: State, Treasury, and I guess Navy. And one of the questions they start to ask themselves is: How explicit do we have to be about the kinds of power the president has over this body?

Let me tell you how it comes down in the tradition, and then we can talk about what actually happened. Here’s how people talk about it: they say in designing the initial large departments of government, a question arose about whether it should be specified in statute that the president had the power to remove the secretaries of the departments or not. Nobody disagreed that they wanted the president to be able to remove the secretary of state or the secretary of the Navy. But if it were specified by statute that the president could remove them, then it would appear that the power to remove was granted by the statute and not by the Constitution.

Some argued that to do this would be to deny that the Constitution gave the president a power of removal. Their position was that there should be no mention in statute of the ability to remove. Rather, the statute should just reference what would happen if the secretary was removed. And this would in turn make it clear that the Congress believed that the president had the power to remove the secretary, directly from the Constitution, without having to rely on an additional grant of statutory authority.

According to the standard story, these two factions faced off. There was a series of complicated votes, but the meaning of those votes was ultimately that Congress accepted the position that the Constitution gave the president this power to remove. And that decision taken in 1789 came to be respected by all the other branches. It liquidated the Constitution’s meaning, or reflected the Constitution’s original meaning, since there were so many people in the First Congress who had also been part of the drafting and ratification process.

So, the Decision of 1789 establishes that even though the Constitution doesn’t say anything about the removal power, it should be read to give the power of the president to remove at least the heads of departments. That’s the standard story.

What actually happened, when you dig into the votes, is that it just gets weird. The first thing to stress is that nobody thought that this question was going to emerge. That’s not my opinion—I’m actually not a historian of the early republic; that’s the conclusion that my friend, Stanford Law School’s Jonathan Gienapp, who’s got to be the most impressive historian of the early republic of my generation, draws. He’s written an amazing book called Second Creation, which looks at the way new officials, especially the House of Representatives in this new government, worked out the meaning of the Constitution. In that beautiful, complicated [period] of 1789, [when they were trying] to spin up a government, they got into tons of fights over the meaning of the Constitution. Jonathan’s book unpacks those fights. I highly recommend it. He’s also got a great article about the Decision of 1789 in the American Journal of Legal History.

One of the points he makes in that article is that, from reading the debates, we see these representatives stumbling into this question. They didn’t come in with firmly developed ideas—they changed their opinion over the course of the debates. They have to discover that it’s a question they haven’t resolved. Then they realize that they think about it differently and argue over it. That doesn’t mean that they might not have been resolving an important constitutional question. They were certainly debating one. But it gives the lie to the idea that the debate over this particular question was fundamentally different from the other debates in the early Congress.

In particular, he emphasizes how uncertain and contingent it all was. That’s point one. For point two, Jed Shugerman, a law professor and legal historian at Boston University Law, has gone through and reconstructed the debate in a tremendous amount of detail. He wrote an article called “The Indecisions of 1789” where he emphasizes the strategic ambiguity. It’s not as if there were two clean factions that faced off against each other, with one of them saying, “I believe that the Constitution gives the president the power to remove,” and the other side saying, “No, it doesn’t; only the statute does,” and then there was one single vote, and you voted up and down, and the constitutionalists won. That’s sometimes how people talk about it, but that’s not at all what happened.

You had at least three factions, maybe more, and they didn’t come right out and say what they believed. You have to sort of reconstruct what their views were based on the little snippets that they give. It’s clear that there was a range of positions on offer about the relationship between the Constitution and statutory power with respect to removal. And there wasn’t one vote, there were two votes on two different provisions. They were structured in such a way that it makes it very difficult to understand what any individual might have believed based on how they voted. You had different majorities that carried in each of the votes.

One of the votes is for whether the statute should say that the president can remove. That would be the statutory grant. Then there’s another bit that has to do with what happens after a removal. Jed’s article is wonderful—it’s in the Penn Law Review; I can’t recommend it enough, especially if you’re an early republic nerd. But I come away from that article persuaded that it is very difficult to make any clear meaning out of this sequence of votes.

Now that, of course, hasn’t stopped people from trying to do so, although the reasons they rely on this early republic decision have changed over time. Some people have cited it on the grounds that because there were so many people in the First Congress who were part of the ratification process, it gives us privileged insight into the original meaning of the Constitution.

The two problems with that argument are that, first, there were people who were in the early ratification debates and in that early founding moment on both sides of this debate. So there’s no conclusion there for those trying to look for a settled meaning. And, of course, people change their minds on this question. Alexander Hamilton, when he’s writing the Federalist Papers, says, “Of course the president can remove, but given that removal tends to follow the same process as appointment, if someone has been appointed with confirmation of the Senate, then you have to get the concurrence of the Senate to remove them.” That’s what he writes in response to anti-Federalists who are worried that this new constitution is giving the president too much power.

But then when Alexander Hamilton is in Washington’s government, he changes his mind and he writes a letter saying, “Now that I’m actually here, I think maybe the president should be able to fire you without having to go through the Senate.”

If your goal is to use all that as an indicator of original meaning, it’s very hard, because they’re not all on the same side and they change their minds. So what meaning do we make of that? Other people, and I guess this points us towards Taft, rely on it as a decision that others come to rely on and accept. That’s a very different kind of argument. That’s an argument from acquiescence, but I’m getting ahead of myself.

Craig: Lots of fun parliamentary procedure ambiguity. I sometimes wonder if folks who’ve done this have never had the blessing of being in a deliberative body, trying to pass motions and amendments. It’s never quite as definitive as the final result might give you the impression that it was.

Rosenblum: As a fellow Robert’s Rules of Order nerd, I appreciate your intervention.

Craig: So let’s leave our Delphic Oracle Founding Fathers behind, and skip forward a few decades, because the next big development in this historical story was during Reconstruction and the aftermath of the Civil War. We could do a whole show on just this incident, but the short version is Andrew Johnson is president after Abraham Lincoln has been assassinated. Johnson is frankly an extremely racist president in a lot of ways. He was not good on wanting to have an aggressive Reconstruction, defending the rights of freedmen in the South, removing the ex-Confederates from power, and all that stuff. Congress was in the hands of the Republicans, particularly the more radical Republicans.

At this point, half the country or thereabouts was under military occupation. The southern state governments were being run by the Army for the time being. And so Congress passed the Tenure of Office Act, saying that Johnson could not fire a wide range of officers, but most relevant was the Secretary of War, Edwin Stanton. He was in charge of the Army and thus administering Reconstruction, and this law says you can’t fire him without the consent of the Senate. Johnson did so anyway.

There’s some great scenes where Stanton barricades himself in his office. If you’ve seen the recent series, Manhunt, about the aftermath of the assassination of Lincoln, they show this in a scene at the end. I highly recommend it. Johnson was impeached over this—the first president to be impeached. And then he was acquitted by one vote.

This has often been remembered as if the fight wasn’t really about the Tenure of Office Act; that it was some technicality, a pretext. It was really all this other stuff about Reconstruction, and the Tenure of Office Act was unconstitutional. That’s the version I heard in high school when we were doing this in American history. But I take it they were not that disingenuous. There was a serious principle at stake here, that the Republicans in Congress really did believe they had the power to set this restriction.

Rosenblum: Absolutely. As you’ve alluded to, there were so many problems with Andrew Johnson. He was also an alcoholic and he was quite explosive. Today, the president’s warmaking powers have been so aggrandized that it’s difficult for us to remember just how central Congress was to the Civil War. I have this bust of Abraham Lincoln in my office. He’s an almost larger than life figure, right? But Lincoln is working incredibly closely with Congress in prosecuting the war. There’s a committee of Congress that’s deeply involved there. He’s anxious that they’re constantly looking over his shoulder. That captures the sense in which the 19th century state really was a legislature-dominated state.

This is going to remain true, especially afterwards. So, when Johnson is trying to get around the legislature, it’s a real threat. It’s understood to be a real attack on the constitutional order. Not just the “new birth of freedom” that the Radical Republicans are pushing—although obviously that, too. But a tremendous disrespect for what is, after all, the first branch—the one with the power.

So, when he ignores the Tenure of Office Act, he’s not just coming up with a way to implement his will on Reconstruction. It’s a violation of Congress, which is precisely what is at stake in the Tenure of Office Act. It’s the reason why he wants Stanton removed.

Part of what Congress had done at the time, really what the statutes did which Congress passed, is they required the continued military occupation of the South to run through the secretary of war. They didn’t trust Andrew Johnson. They thought that he had broken with them over what the Civil War was for and meant. They wanted to make sure that actors who understood the meaning of the Civil War were in charge of the Reconstruction process. It was in order to subvert Reconstruction that Johnson sought to violate the Tenure of Office Act.

With respect to the high school story ... that high school story isn’t wrong, but the two are more deeply connected than one might imagine. The Tenure of Office Act is a tool that the Radical Republicans are using to implement Reconstruction. When Johnson violates it in order to do his own attempt at Reconstruction, violating the Act is part and parcel of trying to undo the new Reconstruction that the Radical Republicans are pushing. So that’s one part.

Then the other part, which you’re getting at, is it also threatens Congress’s ability to structure the government. If you go all the way back to Ex Parte Hennen, which is an [1830s] case, the Supreme Court there says removal power follows appointment power unless you vary it by constitution or by statute.

There’s by that point a long tradition of Congress being able to control through statute. That is to say, Congress may write the law, but the president signs it. So this is dialogical. It’s not just Congress against the president. It’s the two working together to build out the government. But you can have statutes that specify a term of years. There are statutes going back to the early 19th century in which Congress says you’re going to have these people who serve in office for a given term of years, which is in some ways a limit on the president’s power.

When they passed the Tenure of Office Act, it’s obviously quite an aggressive act, but they’re doing it in the face of an aggressive president—to protect their own prerogative and to realize, after all, a policy that half a million Americans died to try to bring into being. It’s a really significant moment in American history, and in particular the question of the removal power. What’s interesting is that afterwards, despite questions about its constitutionality from early on, it remains on the books and in some critical ways was expanded. So throughout the second half of the 19th century, we have not only the civilian Tenure of Office Act, but also military tenure of office acts. That ends up being really important for the evolution of the jurisprudence.

The key point for us to keep in mind is that even though the Stanton removal is the one that’s most dramatic, in the 1870s and ’80s, you have these cases where you’ve got cadets in the Navy who the president would like to kick out of office. You might expect that this is the high watermark, the president is the commander in chief of the armed forces. But for a variety of reasons we can get into, Congress had written a law, and the statute said that these cadets enjoyed tenure in office, that they were in their positions and could not be removed from them.

The Supreme Court repeatedly backed the cadets against the government, against the executive branch. So that’s much less controversial, a much more bread-and-butter legal conflict. But it’s the same principle as the principle involved in the dramatic fight over the Tenure of Office Act and Johnson’s impeachment but completely run of the mill law.

Craig: So that takes us into the later 19th century. Like you said, the Tenure of Office Act was still on the books, even though Johnson had been acquitted, and we have all these other laws. A lot of this was related to the spoils system, what we might less disparagingly call patronage—the ways the party machines of that era involved a lot of using government offices and positions. This was before we had the modern civil service system. Towards the end of this period, narrow initial versions of the civil service protections come in.

In particular, the plum pick that a lot of people had in mind and everybody wanted, if your guy won the Senate election or your guy won the presidential election, was to be in the post office. Because that was one of the largest government agencies that existed in a time when there weren’t a whole lot of very large government agencies.

So, one of these laws that was passed, after Johnson and after the Tenure of Office Act, involved postmasters and giving them a set term and protections. The way it was structured, they could only be removed when the Senate confirmed a successor. If the president wanted to fire them, [he had] to nominate somebody else first, the Senate approves them, then they’re the new postmaster for East Topeka or wherever.

This brings us to Myers. So, how did this case about firing a postmaster—and if I remember right it’s in Oregon somewhere—end up becoming this constitutional landmark case?

Rosenblum: As you’ve just suggested, in the second half of the 19th century, we do keep the Tenure of Office Act on the books, but eventually they repeal it. There’s also this important revision to the statutes in 1878. I talked about this in the article, but, importantly, they rewrote all of the statutes just to codify them.

At the time, the Tenure of Office Act is on the books, but then they repeal it later and they don’t totally harmonize the whole thing. There are all these errors. By the time we get to the turn of the 20th century, it’s confusing. But one thing is really clear, just as you said, the post office remains a huge source of patronage and the law is structured in a way to protect the people who are in it.

You were alluding to it, but I just want to underline this: the protections mean getting the Senate involved. It’s probably about upholding the patronage regime because it means that before you appoint or remove a postman, you have to get the Senate to sign off on it.

Basically it was a pretty standard story that if you ran a political machine, you would eventually get it to put you in the Senate. So a lot of the senators, especially on the East Coast, or actually also in the Mountain West, are the leaders of local patronage machines for which the post office is a critical spot. In part because, just like you said, it’s a huge number of people, but you also get to make deals to carry the mail. You get to subcontract out mail carrying routes, which can be extremely lucrative. Good old-fashioned honest graft, as George Plunkitt of Tammany Hall here in New York might’ve put it.

Okay, so what happens in Myers? Frank Myers is a postman in Portland, Oregon, and he gets the job the way that you get a standard patronage job: he managed some senator’s campaign. Myers is a Democrat, which is convenient because he’s nominated by Woodrow Wilson, also a Democrat. That’s why he gets the job. He clearly gets into fights with people, and maybe he’s part of his own rival political machine. It’s not totally clear. But he must do something to offend whoever his powerful patrons are, because Woodrow Wilson decides that he’s going to be removed.

Although, actually, I should put a small asterisk there. Basically, the law at the time prevented the president from removing someone from a postmaster position without the concurrence of the Senate. The way this usually worked is that the president wouldn’t ask the Senate for permission to remove you. Instead, the president would just nominate someone new to the job. The Senate would confirm that new person, and the confirmation of the new person was understood to be the Senate’s participation in the removal of the other person.

Incidentally, this way of removing, by appointing a new person, is what I think the law means when it says that removal is an incident of appointment. If you can appoint someone to a position just by dint of doing so, you remove whoever was in the position before. To go back to your initial question, why didn’t they say more about removal? That could also be part of it. Maybe the Founders were just thinking: We don’t have to specify removal because the easiest way to remove is just to appoint someone new to the same role.

In any case, by the time that Myers’ removal is being advanced, Wilson has suffered a terrible stroke and he’s basically catatonic. This is well described in his biography. His wife, Edith Wilson, is essentially running the government. Woodrow Wilson’s advisors are like, “Half his body doesn’t move.” They’re sort of draping his body in different ways to suggest that he’s still more vital—like a Weekend at Bernie’s kind of thing.

It’s during that time that the order to remove Myers from his job as postmaster comes down. To this day, we don’t have a letter from Woodrow Wilson saying Myers is removed, even though other presidential removals at that time do have the president’s name in the letter signing it. Myers is understandably confused. Not [because] he’s been fired—people get removed and replaced for patronage reasons all the time. But he believes that the law has been violated. This is both because of the long history we were just talking about, and more practically, he writes to various senators that he knows and he says, “I want to plead my case.” The senators write back and say, “Yeah, you’re right. You’ll get to plead your case because Wilson’s going to have to nominate a new postman to get rid of you. We’ll have to hold hearings and when we hold hearings, we’ll bring you in and you’ll tell us why you shouldn’t be removed.”

So Myers is getting geared up for what he understands to be an ordinary political patronage fight. Instead, he just gets this letter saying, “Actually, there’s not going to be a hearing. You’re just kicked out.” So he sues, and he dies while the suit is in process, so ultimately his estate carries on the suit. By the time it gets to the Supreme Court, the political composition of America’s elite has changed. And this gets us to William Howard Taft.

Taft is one of the giants of his era from a law perspective. He is beloved, he’s popular, he’s incredibly judicial. It’s been remarked about Taft that his highest dream in life was to be a judge on the Supreme Court of the United States, not to be president. When he becomes governor general of the Philippines and has to give up his appellate clerkship, he doesn’t want to do it. Teddy Roosevelt, the secretary of state, and his wife all say, “You should do this. Don’t just be on the sidelines. You’re a young man. Go seek out adventure.”

This gives us some insight into how Taft is thinking. He’s very deliberate. When he’s in Ohio before that, he’s very much part of the reform Republicans. The Democratic and Republican parties are transforming at the end of the 19th century because of the patronage dynamics you were describing. You get a bunch of, let’s say, more elite, especially in the Republican Party, politicians who are just scandalized by the patronage corruption. They want to clean things up and they want to bring good government expertise order into government administration.

Teddy Roosevelt is one of the exemplars of this. He’s one of the civil service commissioners down in Washington before he becomes a governor of New York, before he becomes police commissioner, and eventually rises in his meteoric political career. Taft is also involved in anti-patronage efforts back in Ohio before he enters into federal judicial service and eventually government work. They’re part of a whole movement of folks who are convinced that the old patronage world is bad, anti-democratic, corrupt, venal, and needs to be changed and reformed. The locus of that venality is these political machines controlled by these terrible senators.

So when Taft is governor general of the Philippines, he gets to set up a government institution, a civil service, a well-functioning administration. He can do it without having to worry about these dumb, corrupt political machines or legislatures intervening and trying to prevent him from doing what he wants. This helps inform how he thinks government should work.

There are a bunch of other tendencies at the same time that lead a group of these elite reformers—especially Republicans, but not just Republicans—to become really suspicious of this legislature-led approach to government. To imagine that a better way of doing government, a more responsible way of doing government, is to give the president more power over the way administration.

Woodrow Wilson is a great example because, when he writes Congressional Government in 1888, he’s deeply critical of legislative dominance. But there, he seems to be pushing something like a return to federalism. He’s not yet imagining presidential primacy. By the time he writes Constitutional Government, 30 years later, he says, “I’ve now realized that in fact the way to do democracy is just to give the power to the president.” He says the president can be “as big a man as he can” with the party behind him.

Now, in Wilson’s case, he’s probably megalomaniacal. I’ve mentioned some books on the podcast already, but I’ll mention one more. Patrick Weil’s The Madman in the White House, which is about Woodrow Wilson, does a wonderful job of detailing Woodrow Wilson’s megalomania: his conviction that he was appointed by God to be the leader of the American people, his sense that he’s a world historical figure.

When the senators are threatening not to ratify the Treaty of Versailles, when they don’t ratify the United States joining the League of Nations, Wilson wants to dismiss them and call for new elections. He’s got this very parliamentary vision in which I am the leader and you guys are accountable to me—which is obviously foreign to the Constitution.

Wilson’s thinking that way, and there’s Teddy Roosevelt with the “stewardship theory” of government. Taft is coming in, in a way that’s much more careful and thoughtful and judicious, but part of a similar current—reforming government to make it more efficacious and accountable by concentrating powers in the hands of the president, informed in part by his experience as governor general of the Philippines. As he later writes in Myers, he was able to see just how much you can get done if you don’t have to worry about this kind of meddling interference from the legislature. It’s under those circumstances that he ends up writing the opinion that decides Frank Myers’ case.

Craig: He writes a rather lengthy decision. He takes a long time to do it. There had been this line of cases doing basically statutory interpretation. The pre-Myers law was: “What did Congress mean to do?'“ There wasn’t a whole lot of challenging the idea that this was a question for Congress to decide. But with Myers, we get the first appearance of this idea that, no, this is constitutional—that, under the Constitution, because the president has the Executive Vesting Clause, he has to be in charge of everything in the executive branch. He has to have pretty much unfettered power to fire at will because they’re his subordinates, and he can’t really be in charge of them if he’s not able to fire them effectively at will.

This is also happening against the backdrop of the Progressive Era, where the federal government is expanding. We’re getting a lot more new regulatory agencies, new laws, antitrust enforcement, the Interstate Commerce Commission, all these sorts of things.

So that’s what Myers says. But then there’s a little bit of walking it back not even a full decade out. Political times have changed a lot as we get to the New Deal. Franklin Roosevelt has a very robust view of presidential power in a lot of ways—even beyond the Teddy Roosevelt, Taft, Wilson vision of the presidency. Though I don’t think he ever thought he could dissolve Congress, that one I hadn’t heard about Wilson.

So we get this case, Humphrey’s Executor, in 1935, where FDR tried to fire, pretty much exactly like is happening right now, a member of the Federal Trade Commission. The law says they can only be removed for cause, which is, you’re taking bribes or incompetent or not showing up to work. But Roosevelt tries to say, “No, we just have policy disagreements.” This is another case where the guy died before it reaches the Supreme Court. That’s why it’s Humphrey’s executor.

What exactly is the rule that it lays out? Because it seems like it’s a little bit of a fudge. But it’s been the backdrop against which all these agencies we’re familiar with now—the FTC, the SEC, the FCC, basically anything that has “commission” in the name—is building off of what was found in Humphrey’s.

Rosenblum: You got it. Let me say one last thing about Myers before we jump to Humphrey’s: I hope it comes across that I have a lot of warmth for Taft in particular. Even though Taft pushes this more presidentialist vision, he doesn’t give up on the independence of the civil service or the importance of expertise. So, the Myers opinion is this really fascinating, complicated document that’s got both strands in it. But you’re absolutely right that at the time the presidentialist strand is the one that people really focus on.

That’s part of why, when Roosevelt fires Commissioner Humphrey, he believes that he can get away with it. He’s thinking, “I’ve got this Myers case on my side. It’s going to support me even though there’s this statute that says I can only fire for cause.” At the time, Roosevelt was working closely with Congress, but many people believed that he was asserting too much power. He famously gives the speech where he says, “Don’t worry, I’m not trying to be a dictator. Besides, I wouldn’t be a very good dictator if I tried,” which is not what you want to say when you’re trying to reassure the public that you don’t have dictatorial ambitions. So, when Humphrey’s is decided, subsequent commentators read it through the lens of this anxiety about overweening presidential power.

Okay, the ground of Humphrey’s is that there are certain positions that are quasi-legislative or quasi-judicial. If you’re in one of those positions, it’s totally fine for a statute to prevent you from being removed by the president, even if it might appear on its face as if that’s the kind of office a president should be able to control. Now, if you and I had been talking last year, I would have said, “Boy, ‘quasi-legislative’ and ‘quasi-judicial,’ what a fudge. What does that even mean?” But over the course of the last year, a group of us have been doing some research into these terms. It turns out that, in fact, they were terms of art, and we’ve just forgotten what they meant.

So, at the risk of mentioning more people for your listeners to go track down, there are two young scholars: one is Beau Baumann at Yale, and the other is a fellow here at NYU with us, Nathaniel Donahue. Nathaniel has a great blog post about this. Beau has an article. Nathaniel and I are writing an article together on this question.

It turns out that the terms “quasi-legislative” and “quasi-judicial” go back, just as you were saying, to these commissions, things like the Interstate Commerce Commission. And they trace back to municipal government. It’s clear that these terms are developed in the late 19th century to describe offices that exercise power under a statute, but that are not operating as alter egos of the head of the executive branch. They are Article I judges, or they are commissions in charge of rate setting, or they are cities that are enacting ordinances pursuant to state law, but pursuant to their own processes.

It’s a way the law developed for talking about offices that unlike the postman who is, in the late 19th century, an extension of the president insofar as they’re part of this patronage apparatus. What are postmasters doing? They’re just exercising executive power. That’s not what the court says what the ICC is up to, or somebody setting rates for railroads. They’re making a kind of expert-driven calculation. Ultimately, what the court decided in Humphrey’s was this included the Federal Trade Commission, even though Roosevelt wanted to use it as a tool for realizing his policy. Roosevelt was like, “I disagree with you, Humphrey, about how to do antitrust stuff, and I want to do it my way.”

The responsibility of the commissioners was not primarily to the president, the Court said. It was to the statute. The statute told them what to do and they were supposed to exercise their own judgment in implementing the statute. So the Humphrey’s case ends up saying quasi-legislative and quasi-judicial roles can be insulated from presidential removal. And that was understood to be, just as you said, a repudiation of Myers.

Although there is this puzzle that I was trying to research this summer. I still haven’t answered it. Myers is a case that’s decided 6-3. Of the six judges in the majority in Myers, four are still on the Court when Humphrey’s is decided nine years later. And all four of those judges vote with the majority in Humphrey’s. So it does seem as if the judges in Myers did believe that Humphrey’s and Myers were compatible—even though you’re totally right, we read it now as a repudiation, and that repudiation, well ... maybe I’m getting ahead of our story again, but that’s what Antonin Scalia really holds onto in his dissent in Morrison vs Olson, which is sort of the last chapter of how we get to today.

Craig: Yes, and that does bring us up to the next bit of this story.

We went through the larger part of the 20th century and Humphrey’s seemed to be relatively settled. There wasn’t a whole lot of active dispute about this. All these commissions, presidents got their appointments, but they were staggered and there was gradual turnover and it wasn’t a point of too much contention. Until we get to Morrison, which was this case involving the independent counsel statute. That was where Congress said for certain things, particularly when you’re investigating the president himself or misconduct in the executive branch, we’re going to have this independent special prosecutor and the president can’t just go fire them willy-nilly. This got challenged and all of the Supreme Court justices said “No, that’s fine”—except one. But that one happened to be Antonin Scalia who would go on to be more influential in a lot of ways in the Roberts Court era and where we are now. So in going back to Myers as Scalia did, how did he recast that into, what we would call today, unitary executive theory?

Rosenblum: In his solo dissent in Morrison, Scalia says the Constitution gives the president “the” executive power, which must mean all of the executive power. This statute that Congress drafted, the independent counsel statute, which creates a prosecutor who exercises executive power but is not responsible to the president, clearly violates this provision.

We talked about this a little at the beginning. That provision, the “the” in it, was put there by Gouverneur Morris and the Committee on Style. It wasn’t exactly the kind of thing that the convention debated, but now here it is 200 years later coming back and Scalia is making it a real cornerstone of his argument. He says, “What’s really happening in this case is that the majority, my colleagues, are ignoring the Constitution, relying on Humphrey’s Executor to repudiate the Myers case.”

“But the Humphrey’s Executor case,” he says, “didn’t grapple enough with Taft’s excellent analysis in Myers.” Then Scalia writes an essay called, “Originalism: the Lesser Evil.” That essay is really important. It’s probably Scalia’s first statement about this new methodology that he’s pushing called originalism. He says when we read the Constitution, we’ve got to look at its text, but it’s not just like looking at the text of a statute, because we need to understand what it meant—that is, what the people who wrote it intended when they did it.

That’s a really challenging thing to do. But if you want to see how to do it, the person who did it best was William Howard Taft in Myers, according to Scalia. Taft looked at the meaning of these constitutional provisions, looked at the Decision of 1789, and said this tells us the original meaning of the Constitution, and the original meaning was that the president had this removal power.

This essay that Scalia writes—“The Lesser Evil”—is right after Morrison. So in this one moment, Scalia writes the solo dissent in Morrison saying, “I’ve read the Constitution and based on my reading of the Constitution, Taft was right in Myers, not the majority in Humphrey’s.” In other words, it’s not appropriate to insulate executive officers from presidential control. Then, he writes a scholarly essay saying, “It’s not just that I look to Myers in this one case. I actually think Taft is showing us a method for how to decide cases.”

Now, I just have to point out, because I am a law professor, I think this misreads the Myers opinion. When Taft relies on the Decision of 1789, it’s not because he thinks it tells us what the original Constitution means. He doesn’t say, “Oh, look, all these guys were Founders.” He says, “This was a new construction of the Constitution, but it came to be accepted by all the other branches. And in the separation of powers, we should take seriously that notion of acquiescence.”

So I think Scalia misreads Taft’s method. I also think Scalia misreads Myers. Scalia says the court in Humphrey’s just rejected the careful analysis in Myers. Taft wrote 60 pages. The Myers opinions, when you include the dissent, is like 300 pages. Taft worked on it for two years. The Humphrey’s case is like 12 pages—it’s not a hard case for them.

Scalia looks at this and says, “They just dismissed Myers. They didn’t take it seriously.” But remember, of the four Myers judges left on the Court in Humphrey’s, they all vote for the Humphrey’s majority. Clearly they don’t think that they’re breaking with their prior decision—or, if they are, it doesn’t bother them. So I think Scalia is mistaken.

Joke’s on me, because even though at the time Scalia wrote a solo dissent, that solo dissent proves to be unbelievably influential. Scalia’s law clerks, many of whom become law professors, draw from it. As Federalist Society judges get confirmed, they really cling to the dissent in Morrison as having been correct. Even though the author of the majority opinion in Morrison, [William] Rehnquist, a very conservative judge, writes a wonderful little takedown of Scalia’s dissent. He’s saying, “I don’t know what’s going on with my brother Scalia. He’s trying to put more on the text than the words will bear.”

But this all comes to a head under the Roberts Court where, in a series of cases, starting with the Free Enterprise Fund case, the Roberts Court turns what had been a dissent in Morrison into the theory of the majority.

That’s where we are today. The key of Scalia’s Morrison dissent was, as my con law teacher taught me, you need a clever textual argument and a strong structural theory. Scalia’s Morrison dissent had both. The clever textual argument was the Vesting Clause, and the Take Care Clause. This means the president has to be responsible for running the government.

But the powerful structural theory wasn’t different from Taft’s structural theory. It was that the president is elected by the whole American people. The president represents the will of the nation and to be a democratic polity, we need the president to be able to control the government. Taft says that in Myers, Scalia says that in his dissent in Morrison, and John Roberts writes it into a majority opinion in Seila Law, decided just five years ago.

Craig: So there are a couple of ironies here. One is that, as much as this is couched in originalism—it’s kind of the wellspring of what became the originalist revolution—it’s very bad history.

You see this in the dissents in Myers and you see it in Rehnquist’s criticism of Scalia. There is this long history after 1789, in the antebellum era, through the Civil War, throughout the 19th century, everywhere except maybe this nine year period between Myers and Humphrey’s [in which] Congress passed laws and presidents mostly acquiesced in this position that Congress actually does have the power to structure the government.

But aside from the bad history angle, I want to zero in on that structural argument because that goes to, well, why does this matter? I think it really is fundamental to how we got this supercharged imperial presidency, as it’s been called—the idea that the president is this unique tribune of the people, even though he’s not actually directly elected nationwide.

My understanding of how the Framers would have talked about this is, “no, actually Congress and particularly the House of Representatives are the representatives of the people. They’re the ones who are much more local. They’re the only ones originally required to be directly elected.“

So that brings us to the Trump era. I don’t think it’s too much of an exaggeration to say he and a lot of people in the administration have been on a purge mentality of people who are not willing to get on board with their policy agenda. This includes a lot of very legally questionable things.

This brings us to the case that is currently pending for the Supreme Court, which is widely expected to overturn Humphrey’s. The way the question is presented and reading the tea leaves, it’s not been subtle. The Roberts Court has been building up to this, that they’re probably going to overturn Humphrey’s altogether. And where will that put us? It’s kind of Myers on steroids.

Obviously, we don’t have the opinion yet. We don’t know exactly what they’re going to say. And there’s this weirdness about, no, the Federal Reserve is different. We’re going to carve it out, maybe. But if Humphrey’s is overturned as expected, does this mean essentially Congress has no power to provide any kind of tenure or removal protections? There’s no ability to have any independent agencies? Unless you’re an Article III judge or a member of Congress, the president’s your boss and he can fire you whenever he wants?

Rosenblum: I would say the biggest challenge is uncertainty as opposed to absolute prohibition. I think your analysis is exactly right. You’re completely on point. A real challenge for the Roberts Court has been that they’ve expanded presidential power so much and given the presidency such protections from the rule of law. Think about the immunity case. It’s hard to see how to reconcile the government they’re imagining with the Constitution, or with a president that is supposed to be under the law.

So there’s a huge question: If you overturn Humphrey’s, you make it more difficult to understand how to design institutions that involve some degree of insulation from the president. It might still be possible, and it’s certainly the case that there are lots of actors in the government who most of us think should be insulated from presidential removal, even if we disagree about principal officers.

Chris Walker at Michigan, a wonderful colleague, has got a great article. He’s got great co-authors too, Aaron Nielsen, Melissa Wasserman. But he’s written a lot about adjudicators—and Emily Bremer at Notre Dame has done this, too—that is, the people inside the government who are basically like judges, even though they’re not Article III judges. I think all of us would be weirded out if these administrative law judges are supposed to decide cases on the basis of a phone call from the president. And if they don’t do what they’re told, they’ll be fired. Soviet justice was also known as telephone justice, right? I don’t think any of us believe that the Constitution creates that. With Humphrey’s Executor on the books, it’s easy to explain why officers like that can be independent. If you overturn Humphrey’s, you’re going to need some sort of a new theory, or a new account. We might be able to develop one.

There’s another case after Humphrey’s called Weiner that relies on Humphrey’s, but that you might be able to rely on independent of Humphrey’s if you needed to. The key point, though, is that imagine you’re a representative in Congress and you want to design an institution. Right now, you know what the rules are. And in fact, the rules have been basically the same for what, 120 years? If the Supreme Court steps in now, and declares this unconstitutional, first, you’ve got a whole bunch of institutions that might now be struck down—ones that Congress undoubtedly would have designed differently if you had just told them that the rules were different. So there’s a little bit of sandbagging. That doesn’t seem fair.

Suppose you want to fix things going forward. Right now you just don’t know where the lines are. That’s always a real challenge if you’re a judge, to communicate clearly where the lines are—so that when other actors are dependent on you, which is to say legislators and lower court judges, they know what to do.

For what it’s worth, this is part of why the Fed exceptionalism thing makes a lot of us really uncomfortable. Because the Federal Reserve is special, sure, but it’s also just like ... one agency, man. There are a lot of agencies that regulate industries and are absolutely critical to the American economy. Would it be okay to create, I don’t know, a Securities and Exchange Commission to regulate stocks that was structured the same way as the Federal Reserve? And if it was, would that agency be able to benefit from the same kind of independence protections? In some ways, I think the Court doesn’t want to have to wrestle with that question. They want to have their cake and eat it, too. They want to keep the independent Fed and protect the monetary supply, but also allow for strong presidentialism.

But that’s just not really how the law works, because what’s good for the goose is good for the gander. Lawyers reason by analogy. We want to know how the analogies are going to work. So having the justices say, “Don’t worry, we’re not going to threaten the Fed”—that doesn’t cut it. Insofar as I have a 401k, that makes me sleep a little bit easier thinking, “good, they’re not going to inflate all my money away.” But insofar as I’m a lawyer, I start thinking, “wait, that doesn’t do me any good at all.” A “good for one trip only” exception doesn’t actually provide any stability in administrative law. Does that make sense?

Craig: Yes it does. That’s where things stand as we wait to see where the justices come down—exactly what contortions, if you’re being ungenerous, they’ll engage in to reach their result here. But with an eye to the future: one way or another, Donald Trump will not be president forever. And eventually there will be a new majority on the Supreme Court.

So, taking in the grand sweep of this history, what should the law be? Both from the constitutional text, what’s the correct interpretation? And can Congress do essentially whatever it wants, is that the desirable outcome?

As a normative matter, do we want to have a more divided executive branch, where we have more of these independent agencies? And if so, how should we go about getting there? Because obviously we don’t want to go back to the spoils system. That’s not what anybody necessarily wants, though in some ways we kind of are moving back to it.

Rosenblum: I think there are some people who would like us to go back to the spoils system.

Craig: Yeah. So ... Chief Justice Rosenblum, you’ve just been appointed and you’ve got eight lackeys willing to do what you want. Next time this comes around in 2040 or something, how do you write that case? Either overturning Slaughter, which is the current case pending, or restoring Humphrey’s, or overturning Myers, or how should we approach that?

Rosenblum: I really appreciate the question, and let me give you three different kinds of answers: a more historical answer, a more legal answer, and then a more institutional answer.

The historical answer would be, I think it’s pretty clear the Constitution intended to leave to us, the living, most of the decisions about how to govern ourselves. This takes us back to the very beginning of our conversation. The deliberate decision not to include the structure of the government inside the Constitution; the repeated references to the powers of the legislature during the ratification debates; putting Congress as Article I; as you said, the fact that the House of Representatives is the only one that was specified to be directly elected, and was supposed to be the most democratic, in the way that it was put together ... I see so many places—in the Constitution and in our history—where there is a real commitment to letting the living figure out how to govern themselves. It strikes me that a real challenge for the Court would be to vindicate that principle, which they’ve moved further and further away from.

When it comes to the constitutional law of administration, they have increasingly adopted the view that there are only a very small number of ways in which the government can be structured, and those are specified by the Constitution. I actually think they’ve got it exactly backwards. The Constitution was designed to be an eminently practical document. The Founders were eminently practical people. And it’s supposed to be a document that enables us to have liberty and equality while governing ourselves efficaciously. That would be the historian’s point.

The lawyerly point would be that the Court—and this is building on that—has just moved way too far in using the Constitution to limit what can be done under statute. They often frame this as a conflict between Congress and the president. But as I said earlier, that’s just not true. All of this stuff gets done by statute, which is to say by law, and those laws are negotiations between the president and the legislature.

And in some ways those laws involve all of us in the negotiation, too, because we vote for the president, we vote for the legislature, and we know the judges will review them. Doing things through law, as opposed to doing them through the Constitution, is I think a much more practical, responsive way of doing government.

The independent agency question, to me, is secondary from allowing us the flexibility we need to design the governance arrangements that work. This was clear even at the founding. So Christine Chabot has a wonderful article about the “sinking fund,” which was a brand new arrangement. This is at the Founding, it’s the beginning of the Republic. It’s a commission that involves representatives from all three branches to manage the debt. What she’s doing there is recovering a form of governance that was designed to solve one really hard problem.

These legislators in the late 18th century thought, here’s a new institution that would help us solve that. You and I could spitball, if we had the time, about the many new problems we’ll be facing today. Whether it’s AI companies, or industry concentration on a scale that really is unrivaled since the Gilded Era, or changing geopolitical situations, or social media—pick your poison. It just seems obvious, to me at least, that the governance regimes for these different problems could very well look different.

I don’t have any special insight there. It’s just that as a legal historian, I can tell you that in the past, we solved problems like this by developing different governance institutions for different issues. If I were a justice drafting an opinion, I would want to make sure I preserved the flexibility that the Constitution gave to our existing political leaders, to design the institutions adequate to those problems. And you can do that with Humphrey’s.

You could also do that in a new form, drawing the lines differently, not relying on quasi-legislative and quasi-judicial. But it’s very hard to do if you believe that the entire government is an extension of the personality of the presidency.

I’m going to add a last point, which is the institutional point. I do think one real problem with our current arrangements is that so much of the initiative and policymaking capacity have been concentrated in the executive branch. If we’re going to do democracy, but the only organ of government that has the energy and the political will to solve our most pressing problems is the executive branch, then regardless of what the court says, we’ll trend in an increasingly presidentialist direction. That is dangerous. We’re seeing some of the dangers now.

How could we rebalance that? To do that, we have to think: What are the conditions that make it possible for other institutions to play a dynamic role and a responsive role in democratic governance? I think that a lot of the criticisms of Congress are overwrought. Congress is operating basically exactly the way it should be operating, given the institutional incentives for congressmen and Congress. If we want the legislature to push back more against the presidency, if we want Congress to be more engaged, if we’re not going to have more presidential power, we need other institutions like Congress to step back up. For that, we have to be thinking, how do we change the institutional incentives and arrangements so that congressmen and Congress are better able to serve the governance goals we have for them?

Craig: This has been a fascinating discussion and I wish we had more short-term optimism, but as always, maybe there’s some case for long-term optimism.

Rosenblum: Andy, you’re talking to a historian. Long-term optimism is my jam. So I think you put it very well.

Craig: Things that can’t go on forever will eventually end, right? Something to that effect.

Rosenblum: The problem of the republic and time is the oldest problem of secular government. And just as no one seems to have solved it yet, I don’t think we should count ourselves out of the experiment too soon.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

Free societies have always struggled to keep from undoing themselves. From Rome’s drift into empire to the English Parliament’s fight against royal prerogative, from the city states of Renaissance Italy to the Weimar Republic, the pattern is familiar: concentrated power overwhelms the rules meant to contain it. Republics seldom fall to invasion; they erode from within, one emergency at a time.

America’s version of that story has been playing out, with distinctly American twists for the era of TV and social media, fittingly led by, of all people, a game show host. Still, the presidency has swollen into a near-monarchy, a turnkey tyranny, now in the hands of a rapidly consolidating authoritarian regime. Congress has become a theater of the absurd, stripped of all meaningful power, its laws and spending decisions nullified on a whim. The courts are now the ultimate political prize, a means of entrenching partisan policy preferences in perpetuity. Each election feels existential because, increasingly, it is.

The Reconstruction Agenda, a new project of The UnPopulist, will take this problem seriously, building on its Fireproofing the Presidency series. Its Executive Watch project is diligently documenting the copious abuses of the office emanating from this White House. The Reconstruction Agenda will propose fixes and mechanisms to avoid such a scenario from transpiring ever again. Through written analysis from myself and outside experts, along with regular in-depth interviews on The Reconstruction podcast, it will examine how American democracy became so brittle and how it might be rebuilt. The goal is to value genuine expertise and make it accessible to any thoughtful reader. You’re smart people and you deserve smart answers, not clickbait and ill-informed punditry, nor nihilistic doomerism. The task before us is restoring the capacity for freedom and self-government, not simply lamenting its decline.

The Architecture of Failure

The imperial presidency wasn’t invented; it accumulated, until finally the last guardrails broke in the form of an autocrat as shameless as he is lawless. Each crisis expanded executive power, each function ceded by Congress became precedent. The Supreme Court, now dominated by a kind of presidential absolutism masquerading as originalism, has propounded new doctrines that would horrify the Framers, from presidential immunity to some rather extreme versions of unitary executive theory. The modest chief magistrate the Constitution envisioned has become the center of national life, the constant main character at the center of everything, a universe revolving around the occupant of the Oval Office.

Congress’s decline is the mirror image. Legislators act more as commentators than as lawmakers. Oversight is theater; building consensus is treated as betrayal. The modern political marketplace rewards outrage, not results. Lawmaking, negotiation, and budgeting—the core tasks of republican government—have been displaced by spectacle. The people’s branch has turned itself into an impotent sideshow, a Roman Senate pretending it still has a purpose in the shadow of Caesars.

The judiciary now doubles as policymaker, pursuing an agenda radically at odds with the system of checks and balances the justices profess to uphold, subverting limits on both their own power and the president’s. When every policy question ends up in court, and when the administration is little more than a crime spree, law becomes politics by other means. The Supreme Court was never meant to be the country’s only functioning legislature, much less to give an illicit impunity to the man who would be king by handing him sweeping immunity for “official” acts whose understanding is astonishingly broad.

Even the democratic machinery has warped. Gerrymandering, single-member districts, and America’s uniquely absolute and entrenched two-party system distort representation, empowering narrow factions and illiberal extremism. Habit and inertia keep the system running, but the incentives all point toward dysfunction. The more broken it gets, the harder it becomes to repair.

A New Birth of Freedom

The Constitution was an attempt to solve the oldest political problem: how to make liberty durable by making power difficult. A system of government both sufficient to keep order, but not so overbearing it snuffs out the rights of the people. The principles behind its design—divided authority, overlapping ambitions—was drawn from centuries of failed experiments. It was also intended to adapt, to learn, to be amended as needed. Repairing it requires neither blind nostalgia nor total repudiation, just the will to use it as intended.

That means Congress must once again legislate. It should begin by reclaiming its war powers, reasserting the power of the purse, repudiating Trump’s usurpation of control over public spending, and exercising real oversight over an administration in which corruption has run rampant. And the full diversity of the American people must be represented, not just two homogenized blobs answering to only a tiny fraction of the electorate in partisan primaries and uncompetitive districts. A legislature that embodies a truly representative government remains the surest check on democratic backsliding. Trump, after all, has never won over 50% of the popular vote, and his approval ratings and diehard base are much smaller than that. Our electoral system has given us, in effect, a government of minority rule.

The presidency should shrink back to constitutional scale, and perhaps be fundamentally restructured. Emergency powers must expire unless renewed by Congress. Executive orders should implement laws, not invent them. Government agencies must answer to elected lawmakers, not presidential decrees.

The courts need both reform and turnover. Fixed terms for Supreme Court justices would lower the stakes of each appointment, and the idea has cross-ideological support, so it at least ought to be debated and discussed along with other bolder solutions. A restrained judicial philosophy—more assertive in enforcing individual rights, and much less determined to empower the presidency over Congress—would preserve ideological balance and improve the Court’s vastly eroded public legitimacy.

And the foundations of democracy need both protection from novel threats and a thorough modernization, including moving away from winner-take-all systems. Elections are the most fundamental framework of our political incentives, and nothing else survives when that shared premise collapses. A democracy can handle disagreement; it cannot survive a system where losing feels illegitimate and the winners can use unlimited power to stifle opposition.

The first Reconstruction rebuilt freedom and citizenship after the Civil War—imperfectly, to be sure. The commitment faded and with it large parts of the country descended into another century of tyranny. But the embers of Reconstruction did not fully die out. The 13th, 14th, and 15th Amendments—eradicating slavery, promising due process and equal protection under the law while also enshrining guaranteed citizenship, and expanding suffrage respectively—lay effectively dormant but were not forgotten, and in the end their promises—and Lincoln’s “new birth of freedom”—triumphed.

After other moments of constitutional tension, we’ve reformed our institutions accordingly. Adopting term limits after FDR broke the norm of a two-term president, and post-Watergate reforms to rein in Nixon’s executive abuses, among others. This is the business of self-government at its core. A system that can’t bend and adapt to changing circumstances will eventually break.

Donald Trump will not be in power forever, and neither will his enablers and co-conspirators. In the aftermath of such a dramatic constitutional collapse, there must be accountability, but there must also be rebuilding. Balancing those two goals will shape our future for years to come. And how we think about those problems now will inform the best strategies for fighting back in defense of the best in the American tradition.

More fundamentally, no parchment barriers can save a people who are not committed to the fundamental principles of freedom, equality, and democracy. America’s heritage is embodied in these foundational liberal ideals, but they must be articulated and revived for each new generation. We are fortunate that we have a deep cultural aversion to autocracy. That must not be allowed to atrophy. Indeed, we need to re-learn how to use that reflex when it is needed most, which is now. Institutional reforms can only flow from such a deeper commitment.

The Reconstruction Agenda will chart that task—diagnosing the structural failures of the past and mapping the reforms necessary for a durable liberal democracy.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

When Donald Trump announced last month that he had taken control of the Washington, D.C. police department, he invoked the D.C. Home Rule Act, which allows the president to place local police under federal control in an emergency, as the basis for his action. While some might take that to suggest Trump was acting lawfully, Trump had no basis for his invocation of that law. As political scientist David Ryan Miller observes, the Home Rule Act only allows the president to take over D.C. police when he “determines that special conditions of an emergency nature exist.” But there is no emergency in D.C. As Miller points out, “If we live in a system where the president can ... seize power by declaring anything an ‘emergency,’ we no longer live under the rule of law.”

No Kings

That is a concise description of the peril the U.S. faces today. Trump is claiming fake emergencies as a pretext to consolidate power of a kind enjoyed by 17th-century English monarchs—that is, the absolute power to act against statutory law. The federal takeover of D.C.’s police force is just one example of a practice Trump started during his first term in office but has turbocharged now. If Trump succeeds, he will become a kind of American king—something he has openly embraced. Indeed, Trump has indicated that he may claim absolute power to act against the law without even relying on a specific emergency claim. Last Tuesday, Trump declared “we’re going in” to Chicago, suggesting that he might ask Texas Gov. Greg Abbott to deploy National Guard troops in Illinois. Experts said it would be illegal for unfederalized National Guard troops from one state to effectively invade another. Trump has claimed that, as president, he has “the right to do anything” he wants to do, so long as he thinks “our country is in danger.”

We are approaching the 250th anniversary of the Declaration of Independence, which famously describes King George III as a tyrant. The American revolutionaries rejected the idea of a monarch ruling by “authoritarian fiat,” as the historian Jack Rakove explains. Seventeenth-century British monarchs had exercised absolute prerogative, the power to act against statutory law. By the end of the century, Parliament emerged as supreme following a civil war that included the execution of one king, as well as the bloodless “Glorious Revolution” of 1688-89 that deposed a second king. The historian Bernard Bailyn explains that “after the Glorious Revolution [the king] had sworn to govern according to the statutes of Parliament.” While the American revolutionaries worried that King George III had corrupted Parliament, the English monarch of 1776 no longer enjoyed absolute prerogative to act against the law. By claiming emergency prerogative to act against statutory law, Trump is asserting more power than King George had at the time of the American revolution.

Not surprisingly, the framers of the U.S. Constitution had no interest in creating a new monarchy in the style of 17th-century England. The Constitution assigns the U.S. president no substantive emergency power of any kind; the framers declined to give the executive the emergency prerogative to act against the law. Instead, Congress is given specific and limited emergency power, most prominently the power to suspend “the privilege of the writ of habeas corpus ... in cases of rebellion or insurrection [when] the public safety may require it.” Congress has enacted legislation, including the National Emergencies Act, Alien Enemies Act, and what is now known as the Insurrection Act, to give the president authority to respond to genuine emergencies.

The Trumpian Emergency

Most presidents have followed statutory law when using these powers, as I discuss in my new book on the dangers of emergency presidential power. In the past, even those who overreached almost always exercised self-restraint by refusing to use emergency power as a way to consolidate personal control as a dictator. For example, when Presidents George W. Bush, Barack Obama, and Joe Biden improperly extended the (initially justified) 9/11 emergency declaration years and then decades beyond the 2001 terrorist attacks, none of these presidents used this emergency declaration to deploy the military within the U.S.

A few presidents—most prominently Harry Truman and Richard Nixon—sought to exercise something in the vein of absolute emergency prerogative. Truman claimed the power to act against the law in an emergency when he took control of steel factories in 1952; government lawyers initially argued that this power was not even subject to judicial review. In the Youngstown Sheet decision, however, six Supreme Court justices rejected Truman’s claim, insisting that emergency presidential power is limited by law. Justice Robert H. Jackson’s seminal concurring opinion in that case compared Truman’s assertion of “unlimited executive power” to royal prerogative, remarking that the framers of the Constitution were not “creating their new Executive in [the monarch’s] image.” While one editorial cartoon depicted Truman in royal robes and the New York Daily News accused Truman of “do[ing] a Hitler,” Truman accepted the court’s ruling.

Although Truman dangerously overstepped constitutional bounds and sought power without limits in the context of the steel factory seizure, he was not an aspiring dictator. Nixon went further than Truman, claiming power without limits that justified violating criminal law based on a theory of emergency prerogative. Like Truman, however, Nixon was stopped—in Nixon’s case, both the Supreme Court and Republicans in Congress insisted that limits applied to presidential power. Nixon was forced to resign or else be removed from office.

Like Nixon, Trump is an aspiring dictator—but, unlike Nixon, Trump operates largely free from political and legal checks, thanks to supine Republicans in Congress and six right-wing Supreme Court justices who have granted Trump immunity from criminal prosecution. Trump understands that he can essentially do as he pleases, and he has seized on emergency prerogative as a way to consolidate power. This is no surprise; Trump relied on pretextual emergencies during his first term, including most prominently when he declared a contrived emergency at the southern border as a way to unlock money Congress had denied him for a border wall.

What’s different in his second term is the broad scope of Trump’s actions. Trump has claimed phony emergencies to: justify sending hundreds of Venezuelan men to a prison in El Salvador notorious for torture; deploy the National Guard and Marines in Los Angeles; impose tariffs on other countries; and to take over the local police in Washington, D.C. None of these actions is legal, as each one relies on a false claim of emergency to invoke statutory authority.

Although Trump invokes statutes, he is actually relying on emergency prerogative to act against the law. In doing so, he has created a kind of dual state, as noted by Kim Lane Scheppele and Aziz Huq. Scheppele and Huq, in separate pieces, point to Ernst Fraenkel’s use of the term to describe Nazi Germany. Fraenkel explained that, for most people in Nazi Germany, “life went on as usual.” But the Nazis created a “parallel ... Prerogative State, in which arbitrariness reigned and all safeguards of law disappeared.” This is where we find ourselves today. Most Americans are largely untouched by prerogative. Most do not live in cities where Trump has invoked fake emergencies to justify military crackdowns or to remove them from the U.S., and they may not connect any events in their daily life to Trump’s imposition of tariffs even as prices are rising. They may not even realize that Trump has used a pretextual emergency as the basis for many of the tariffs he has unilaterally imposed.

The reality, however, is that Trump “has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges,” as Ilya Somin has written. For the most part, he is succeeding. No court was able to stop him from sending hundreds of Venezuelan men in the U.S. to prison in El Salvador. While a U.S. district court judge ruled against Trump’s deployment of troops to Los Angeles, an appeals court allowed the troops to remain and today the Supreme Court has for now allowed ICE to go forward with its “roving raids” and inquire about the citizenship status of people based on race and accent. Similarly, although another federal appeals court ruled against tariffs that were issued based on a phony emergency, the tariffs have remained in effect for months while the case is headed to the Supreme Court.

Republicans in Congress have failed to act on any of these power grabs. Most importantly, perhaps, Trump understands he will face no meaningful consequences for crying “emergency”; the worst that could happen, from his perspective, is that a federal court belatedly calls a halt to some of his actions. At that point, Trump might simply ignore the court’s decision (as the administration has already done in some cases), or hope for a reliable majority on the Supreme Court to (once again) put a thumb on the scale in his favor.

Where Do We Go From Here?

This is bleak and sobering situation, to say the least. But once we understand what we face, the next task is to think creatively about what can be done while recognizing what still remains of our now failed constitutional system. Trump openly admires Russian dictator Vladimir Putin and would like to exercise the same level of dissent-crushing power Putin has. But the United States is not Russia, and that is crucially important. Americans can still publicly criticize Trump and his authoritarian actions. Public protest remains possible. Those of us who cherish constitutional democracy and want to fully restore it in the U.S. can and must use all peaceful, non-violent means available to us.

Some government officials are challenging Trump’s actions—for instance, D.C. Mayor Muriel Bowser and D.C. Attorney General Brian Schwalb objected to the illegality of parts of the effort to take over D.C.’s police force (although, unfortunately, D.C. officials seem to incorrectly concede that Trump had authority to declare an emergency when none existed). After Trump threatened to send troops to Chicago, Illinois Gov. JB Pritzker bluntly responded, “Mr. President, do not come to Chicago.”

We must recognize the gravity of the moment. It is unlikely that we will arrive at a political solution before the 2026 elections, or even before the 2028 elections. If Republicans would not disqualify Trump from office after his role in the Jan. 6 assault on the Capitol and the broader attempt to overturn the 2020 elections, it is not plausible to expect that they will ever hold Trump accountable, and Democrats would need Republican votes to remove Trump from office even if they can gain control of Congress after the 2026 election. The same is true for the Supreme Court. Trump understands this, and he will continue to use make-believe emergencies as a pretext for authoritarian actions, including the ongoing military/police state crackdown on U.S. cities. We can expect this to expand, as Trump has made clear—and also likely use phony emergencies as a basis for interfering with future elections, as Elizabeth Goitein observed in 2019. If Trump will use the military now, why wouldn’t he also do so in the context of elections as an attempt to intimidate voters in Democratic areas? We can expect even worse if there is something that Trump can more plausibly describe as a genuine emergency.

We are in a dark place, to say the least—but we can’t turn away. We must describe and confront our reality by continuing to tell the truth. What Trump is doing is wrong, it is foundationally un-American, and it is profoundly dangerous. Many Americans understand this. There is no immediate resolution here, but we can start to map a path forward by identifying where we want to end up: in a United States recommitted to the rule of law, limits on power, and constitutional democracy. Statutory changes will not be enough to accomplish this, even if they could be made (and, of course, Republicans in Congress will not do so). Trump relies on a theory of power that does not depend on statutory authority and in fact rejects legislative authority as a check on presidential power.

Ultimately, we will need fundamental constitutional reform and a revitalized constitution to set meaningful limits on presidential power. Even then, there is no guarantee of success. We will still need human beings in positions of authority to do their jobs and carry out their constitutional responsibilities. We have seen over the past decade that this cannot be guaranteed. However, there are still steps we can take to increase the odds in favor of limited presidential power. Those of us who prefer this to Trump’s claim that he can do as he pleases must refuse to accept the notion of a U.S. president who can abuse emergency power at his whim.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

On Tuesday, Illinois Gov. JB Pritzker gave an extraordinary press conference. Together with the mayor of Chicago and the president of the Cook County board of commissioners, the governor announced that President Donald Trump is hatching plans for what can only be described as the prospective invasion of his sovereign state. And not just by federal troops, but by units of the Texas National Guard.

The governor’s move was triggered by Trump’s declaration hours earlier that he plans to go into Chicago. “I’m not saying when,” the president said, but “we’re going in.”

On the surface, these plans, whose specifics Pritzker learned through leaks from well-placed sources (more on that below), resemble Trump’s recent actions in Los Angeles and those underway in Washington, D.C. They involve putting troops and agents on the street under the pretext of “fighting crime” and assisting ICE’s mass deportation campaign.

But if these specifics are correct, what Trump is planning in Chicago would represent a dramatic escalation. To be sure, given how erratic this administration is, we do not yet know if what Pritzker described will actually occur. Texas Gov. Greg Abbott has issued a denial. It is possible that now that the plan has been exposed, it, or at least its most extreme parts, will be abandoned. On the other hand, at least one aspect of Pritzker’s allegation has been independently confirmed by The Washington Post: the Pentagon has authorized the use of Great Lakes Naval Station as a staging area.

Also, it is hard to believe that Pritzker would ring the alarm bell without a solid basis in fact.

It is not politics as usual when a state’s elected chief executive, charged with protecting his people, takes to the airwaves to warn that another state’s troops may soon be used as an instrument of occupation on his soil.

The Union and Liberty

Using federalized troops to fight crime or round up immigrants is bad enough. But it’s important to fully appreciate just how insidious the potential use of Texas troops would be. If Trump tried to deploy federal troops by either putting Illinois Guard units under federal control or by deploying active duty regular military, he’d run into the Posse Comitatus Act, the famous law which generally forbids using the military to conduct civilian law enforcement: arresting and jailing people, controlling the streets. This is why a federal judge ruled that Trump’s recent deployments of the Marines and a federalized California National Guard in and around Los Angeles was illegal—although the injunction issued in that case only applies in California and is currently stayed pending appeal.* Those in the administration likely understand that trying to repeat this stunt in Illinois could get slapped down by the courts again.

So Trump’s alternative course of action, as constitutional scholar explains, might be to invoke 32 U.S.C. § 502(f)(2), enacted in 2006, which would allow him to keep the Texas National Guard under the formal control of the state of Texas while acting at federal behest.

That would be a total abuse of the section that pertains to National Guard units participating in training drills and exercises on specialized federal bases. The section, understood properly, is not intended for authorizing active deployments, and certainly not deployments in another state without its consent and over its objection.

But, unfortunately, buried within this otherwise mundane statute about the normal functioning of the National Guard system is a broader catch-all: “Support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” Not order, or command, or after going through the process of federalizing them. But merely at the “request” for participation of state troops who remain under state, not federal, command.

Trump invoked this section last time he was in office when he “requested” red states to send their National Guard troops to Washington, D.C., in response to the George Floyd protests despite the objections of the D.C. mayor. However, that deployment was brief and ended before the legality of using this section for purposes of domestic crackdowns could be tested. Still, D.C. is different from Chicago in that its own National Guard, which was also used, is always under presidential command, unlike state forces.

The potential loophole created in the section by the catch-all phrase lends credence to Pritzker’s story because it offers Trump a fig leaf for evading one of the biggest legal hurdles for domestic use of the armed forces. However, it also opens a new can of worms, because Texas troops under Texas command would not actually have any legal authority to conduct law enforcement, or otherwise be actively deployed at all, in Illinois. This would make the exercise, despite the legalistic obfuscation, patently illegal, unprecedented, and unconstitutional. It would be, in a very real and literal way, an outright invasion of one state by another.

As we have seen, when presented with totally novel legal questions, the courts do not always move fast enough to intervene. In California, the district court’s ruling only came after the deployment had already ended. Using out-of-state Guard units in this way would be an assault on state sovereignty—a phrase that happens to appear on the Illinois state flag. That’s not just a quaint anachronism or historical reference. In our federal system, the states really are sovereigns. Limited sovereigns subject to the supremacy of the Constitution, but nevertheless sovereign polities with their own laws and constitutions, the creatures of their own people’s constituent power. Pritzker is, in a rarely appreciated but still very real way, a commander-in-chief in his own right, with both the power and the duty to repel an invasion and defend the state’s control over its own territory.

Pritzker described this action as Trump “tearing this country apart.” But more specifically, this would be an assault on the Union itself. It would represent the literal use of military force by one state against another. The seriousness of this cannot be overstated. If the Union means anything, it means our states are bound in a mutual pledge to not do this to each other. It is the most essential guarantee the Constitution makes to the states.

Crossing the Rubicon

As we have seen, any notion of fighting crime or targeting only violent criminals is a manifest lie. Even though Trump has seized on incidents over the Labor Day weekend in Chicago as his pretext, crime in the city has actually been plummeting, currently at its lowest point in decades, and the city is safer than many in red states.

Illinois, of course, has its own National Guard for use in genuine civil emergencies, the state-federal hybrid force which exists in every state, under state control unless and until called into federal service. Rather than using this in-state force, as was done in California, albeit under transparently false pretenses, the use of specifically red-state forces would be making the military into an overtly partisan weapon, turning the National Guard into red states versus blue states, using a compliant Republican governor against a Democratic state on its own turf.

It is also worth emphasizing how, according to Pritzker, he came to hear about Trump’s plans. As he put it, not just “well-sourced reporters” but also “patriotic Americans within the administration and the military” tipped him off. This, in and of itself, is extraordinary. It means not just civilian agencies but people in uniform, actual members of the armed forces or at least within the Department of Defense, are whistleblowing about planned deployments by leaking the information to a governor, risking their careers or worse. That alone represents an astonishing breakdown of civil-military norms and chain of command. This will likely become more common when service members are forced to choose between their loyalty to the Constitution versus a Constitution-busting commander-in-chief.

Another reason Abbott’s insistence that there’s no truth in Pritzker’s claims is hard to believe is he has a record of aggressively deploying the National Guard for immigration enforcement in his own state. Moreover, as noted earlier, several other Republican states already previously obliged Trump and eagerly sent troops to participate in the similar chaos-inducing and economically destructive occupation of the nation’s capital.

What happens next remains to be seen. Pritzker warned, amazingly, that the administration intends to use these troops to raid Hispanic communities and particularly to target the annual celebrations of Mexican Independence Day on Sept. 16. Imagine a comparable parallel: the use of armed troops to terrorize Irish Americans on St. Patrick’s Day. As he explained, in tones usually reserved for warning citizens of an imminent natural disaster, these actions would likely include masked agents hauling away parents, traumatizing children, disappearing people off the streets. It might, as it did in California, result in people being killed as chaos ensues or in reckless shooting.

In America, both by law and more fundamentally by sacred principle, our soldiers are not our cops. “We the People” are not the enemy of our own military, the objects against which it is to be used, to have the tools we have provided for our own defense turned against us. As it was once put in the charge sheet against another despot:

• “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”

• “He has affected to render the Military independent of and superior to the Civil power.”

• “He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.”

• “For Quartering large bodies of armed troops among us.”

Statutory interpretation and constitutional law theories might seem a bit abstract and technical. But the principle at stake is not hard to grasp. It is deeply ingrained. It is part of what every schoolchild learns the Revolution was fought over. It shows up in our popular culture. It’s part of what makes the United States special: A nation, not by blood and soil, but because: “We hold these truths to be self-evident …”

In his conclusion, speaking for the nation’s sixth-largest state and third-largest city, Pritzker put it in the starkest possible terms. “Any rational person, who has spent even the most minimal amount of time studying human history, has to ask themselves one important question: once they get the citizens of this nation comfortable with the current atrocities committed under color of law, what comes next?”

*A previous version of this article described an injunction in the California case as only applying within that federal judicial district; it actually applies statewide.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

A brushback pitch, according to the Baseball Reference site, “is a pitch thrown close enough to the batter to intimidate him.” That’s a fair description of the lawsuit the Trump administration aimed at all 15 of the federal district court judges in Maryland in their personal, not just official, capacities over an obscure court rule in deportation cases. Thomas Cullen, a federal judge, has now dismissed what he deemed this “novel and potentially calamitous” suit—but its significance should not pass unnoted.

The case isn’t over; the Department of Justice promptly filed a notice saying it intends to appeal to the Fourth Circuit U.S. Court of Appeals. That should be fun since the practice DOJ sued over—barring the deportation of a claimant until the court gets a chance to look at the case—is one the Fourth Circuit itself has followed for years, and in more stringent form than the Maryland judges.

Faced with a wave of habeas corpus actions arising from Trump’s campaign to deport alleged criminal migrants without court hearings or a chance to challenge their removal, the Maryland district judges this spring had adopted standing orders requiring the government to wait two business days before spiriting a captive out of the state or country, lest the court’s jurisdiction, along with the rights of a claimant who might have a valid case, be defeated by such removal. It fits into an old and familiar category of judicial powers to issue orders preserving their jurisdiction, such as orders that disputed physical assets (or, in settings like custody disputes, children) not be removed from the court’s jurisdiction without approval.

Attorney General Pam Bondi & Co. seemed to see this as insufferable lèse-majesté, infringing on the executive branch’s supposedly plenary power to enforce immigration law as it likes. But as Cullen noted in his opinion, “many” of the federal courts of appeal likewise impose temporary stays of removal, with the Fourth Circuit typically staying removal for 14 days, as compared with which the District of Maryland’s two-day stay “appears considerably more modest.”

Cullen, a Trump appointee, usually sits in Roanoke, Va., but was assigned the case because the complaint forced the recusal of every single federal judge in the Old Line State, so there was no one local left to hear it. His careful opinion accepts most of the arguments put forth on behalf of the judges by a team led by famous conservative Supreme Court advocate and former Solicitor General Paul Clement. You can read Clement’s brief here, but Cullen found:

• there is no cause of action that supports the DOJ’s demand for legal relief from having to grant some due process to the targets;

• it runs up against both sovereign immunity (you can’t sue the government without its consent) and judicial immunity (you can’t sue judges over their official actions);

• there is no standing (redressable injury in fact caused by defendant’s actions) because the grievance was not properly redressable.

Moreover, he ruled that the few stray cases that the DOJ invoked to furnish precedent do not in fact supply it authority.

Lack of substantive merit aside, Cullen noted that if the suit were allowed to go forward, it would sow enormous disruption and friction in the judiciary and between the judiciary and executive. Not only the 15 judges themselves and their clerk of court, but also executive branch officials such as Bondi and Homeland Security Secretary Kristi Noem:

would potentially be required to sit for depositions and produce documents, including emails and other internal communications. … These discovery demands, in turn, would almost certainly trigger claims of privilege—executive, judicial, deliberative-process, and the like—and invariably compound this constitutional standoff into epic proportions.

(The defendants’ brief also points out that the Maryland judges had been obliged to retain private counsel to defend the action—something it’s unlikely Bondi or Noem would have been obliged to do given that they have at their disposal DOJ’s massive legal resources.)

Had the administration simply wanted to challenge the standing orders in a regular manner without suing the judges, Cullen explained, it had two perfectly straightforward ways of doing so: raising the issue in one of the habeas proceedings and taking it up on appeal, or “petitioning the Judicial Council of the Fourth Circuit, which has the authority to rescind or modify local court rules.” In fact, as Clement has pointed out, following those channels might already have gotten DOJ a clear answer one way or the other on its claims. But of course it wouldn’t have served as a brushback pitch.

Earlier this month, I wrote about one of the highly dubious claims the DOJ was making in this case, namely, that legal checks on a president’s power “diminish the votes of the citizens who elected him.” Cullen had some choice words related to this issue, though he phrased things differently. He noted that the “executive branch is not the sole sovereign in the United States of America”:

As the Supreme Court has explained, the “Framers of the Constitution sought to provide a comprehensive system” that made the United States of America—not a single branch—the sovereign, by “dividing and allocating the sovereign power among three co-equal branches.” United States v. Nixon, (1974). The coordinate branches together form the government of the United States of America, and together they are the sovereign in this Nation. … All branches—and the public officials who serve in them—share the same core sovereign interest: To support and defend the Constitution. [emphasis in original]

True, assertions of national sovereignty do receive great and routine deference in federal courts. But that’s when they derive from the authority of the U.S. government as against other entities—ranging from state governments to the United Nations—not the claimed authority of the executive to exercise control over a judicial branch that is just as much a part of national sovereignty as it is.

While Cullen, in his opinion, mostly handled the Trump claims in a polite and tactful way, he did include a footnote critical of administration officials and spokespersons who “have described federal district judges across the country as ‘left-wing,’ ‘liberal,’ ‘activists,’ ‘radical,’ ‘politically minded,’ ‘rogue,’ ‘unhinged,’ ‘outrageous, overzealous, [and] unconstitutional,’ ‘[c]rooked,’ and worse.”

“Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate,” he wrote.

In dismissing the suit, Judge Cullen did not seek to draw any inferences about the malign intent with which it was filed. But we are free to do that.

An earlier version of this piece first appeared in the Cato Institute.

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

While the fighting between Iran and Israel seems to have died down, President Trump’s decision to attack Iran has again raised questions about the scope of presidential war powers. If a president can bomb a foreign country without congressional authorization, what is the point of the constitutional clause that clearly gives Congress the power to declare war? And if a vital constitutional clause becomes functionally worthless, how can a liberal country protect against the bellicose whims of a president?

Some, like Rep. Alexandria Ocasio-Cortez, have said that Trump’s unilateral actions are an impeachable offense. Predictably, Trump supporters and others have rightly pointed out that it’s a little late to gripe about unilateral presidential military action since American presidents, regardless of party, have long carried out innumerable military strikes on foreign soil without congressional approval. Korea was not a declared war, it was a U.N.-sanctioned conflict. Vietnam was a purported police action meant merely to protect the South Vietnamese government from the communist aggression of the north. Impeachments should have started long ago, if people actually cared.

Unfortunately, without a realistic chance at impeachment—and impeachment for military actions was very unlikely even in more convivial political times—whether people care about war is almost all we have to rein in presidential war powers. But the non-constitutional guardrails that have sometimes constrained war throughout world history are now largely gone in the U.S., namely, death and taxes. People pay attention when their friends and compatriots go to war and whether they come back alive. Americans’ distaste with the “police action” in Vietnam directly correlated with the number of American deaths, which jumped from 216 in 1964 to 1,928 in 1965 and peaked at 16,899 in 1968, right before Woodstock. People also pay attention whether they are in danger from retaliatory attacks, which are unlikely on American territory. And they notice when their taxes are raised to pay for war. In times when the unilateral decisions of kings and emperors largely determined when a country went to war, the people could still feel the costs of war in taxes, and sometimes they would revolt. The Magna Carta of 1215 partially arose from the Barons’ desires to no longer be excessively taxed to fund King John’s failed wars in France. But those were just complaints from the Barons, a small and exclusive class. Later, in 1381, the Peasants’ Revolt was a more popular uprising against excessive taxation due to, of course, wars with France. Even relatively ignorant peasants knew when they were being taxed excessively to pay for the king’s wars.

Distant Bombings Not So Bothersome

But in modern day America, where we’ve become masters of killing from a distance and spending ourselves into $37 trillion in debt without significantly raising taxes (yet), we fight many wars and care little about them. Yes, there are pundits and thinkers who rightly raise alarms, but do enough people care about dropping bombs on countries that maybe they can’t find on a map? Without deaths and taxes, they may not even notice.

Our leaders assure us that such attacks are not “war” and that military hostilities are necessary to preserve our freedoms. Some seem to think that it is not “war” if American troops aren’t in danger. I wonder if Iranians agree, or if Americans would agree if Iran dropped a “bunker buster” bomb on nuclear missile silos in rural North Dakota—no Iranian troops on the ground, no casualties, and certainly addressing a significant threat to Iran (an Iranian “police action”?). Presidents avoid the term “war” and instead use phrases like “kinetic military action” to describe attacks on foreign soil—a phrase Orwell would have been proud to coin (“we’re always in a kinetic military action against Oceania”). They also play up the imminence and magnitude of the threat, even when, as with President Obama’s attacks in Libya, the administration had time to cultivate a U.N. Security Council resolution and then wage a “kinetic military action” for eight months—but evidently didn’t have time to get congressional approval.

Despite 9/11 and other terrorist threats, Americans live in a condition of historically unprecedented safety from international threats. The rage and memory of the British burning of Washington, D.C. in the War of 1812 has subsided. The last invasions of the United States by a foreign power were when Japan occupied some Aleutian Islands in World War II. Japan also used balloons and a single plane to drop a few bombs on the West Coast. Before that, the last ground invasion of the continental U.S. was when Pancho Villa raided into New Mexico in 1916. This geographical safety has long been an incredible bonus for America, and avoiding foreign wars a world away was one of George Washington’s admonitions in his farewell address. Geography is still our best friend when it comes to safety, even more than stunningly destructive weapons, a world-ranging military, and robots that kill other people. This safety has come to be expected and of course demanded, which is one reason Americans tend to freak out when we are attacked.

Constitutionally Unbound

Some may argue that a president can’t really bomb or invade any country he wants. Could Trump really bomb, say, Mexico? He’s already engaged the military in his quixotic fight for border security, why not bombs? Why not troops in Mexico? The Alien Enemies Act of 1798—an act that partially depends on the definition of “declared war”—has already been used to justify Trump’s immigration policies. Yet bombing Mexico or sending in troops seems to many like a bridge too far. But is it a constitutional bridge too far or are the limits entirely prudential? Mexico, after all, is right there at the border, and the cultural and personal ties between the two countries run deep. People would notice a “kinetic military action” against Mexico and probably not be happy, thus affecting even a term-limited president’s standing in history. But past presidents like James K. Polk—who sent troops into disputed territory to provoke a war with Mexico and to convince Congress to declare war—emerged relatively unscathed by history, at least until recently.

Further away from our borders, the prudential restraints on presidents become less salient. How many people who heard the news that Trump attacked Iran said to themselves, “Oh, we’re bombing another country. Meh, so what’s new?” Perhaps Trump or a future president decides to bomb factories in China that produce fentanyl, arguing that it is a de facto act of war for China to flood America with poison that threatens the lives of millions. This would be a bad idea, but is it unconstitutional under current constitutional law as enforced by the courts? Likely not.

Awakening the American Public

But constitutional law is not only about whether a court will stop a wayward president or Congress. Some would argue that meaningful constitutional law isn’t even primarily about court orders, but norms of behavior. A court order can be ignored by a recalcitrant and petulant president. Congress can sanction presidential behavior—perhaps through the War Powers Resolution—but presidents have many tools to get around an unfriendly Congress. Nevertheless, Congress should still make a fuss when there is a fuss that should be made.

And, although there are many reasons for Americans not to care about war, we still do. How much we care often correlates with the freshness of memories of recent American military failures. The hangover from our failures in Vietnam probably served to restrain militaristic presidential whims in the decades after the fall of Saigon. The tragic image of Vietnam that emerged in media—think movies like Platoon or Full Metal Jacket—helped nurture a fear of being “bogged down” in an interminable foreign conflict. Fears of another Vietnam were part of the debates over the second Iraq war and the war in Afghanistan, even when American casualties in those wars were comparatively low.

Many constitutional barriers are or have become functionally paper tigers. Judges usually don’t want to get involved in assessing the prudence of an ultimately political action, and if they do they won’t say so outright (“We hold the law is unconstitutional because it is bad law”). The Supreme Court will rarely if ever strike down a law just because it is a bad idea, which would make it a true super legislature. Thus, some government actions are thought to be “plenary”—given to the absolute discretion of the government actor. The courts won’t overturn a presidential pardon because it is a bad idea, for example, nor will they stop a war because it is wrongheaded (“We hold that Chinese-produced fentanyl isn’t a big deal, therefore the attacks are unconstitutional”).

That doesn’t mean constitutional barriers are meaningless, but rather that the meaning and power they have are not only in judicial decisions. We shouldn’t become inured to presidentially decreed attacks on foreign countries just because they have become common for both parties. When a president breaks a constitutional barrier, it becomes a potential teachable moment to make more people care about constitutional limits, the international liberal order, and the deaths and damage we cause in other countries.

There are people who still care—even those who no longer have to pay in blood and treasure for the president’s deadly whims—but we could use a lot more.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

Like a well-armed drone flying beneath the radar, the latest assault on the independent judiciary is dangerous and stealthy. A short and easily overlooked passage in Section 70302 of the behemoth budget reconciliation bill, it created hardly a ripple of attention as it passed in the House of Representatives and awaited action in the Senate.

In the past few days, however, the Senate rewrote the provision in a way that arguably makes it worse. The House version sought to severely undermine the court’s ability to enforce its judgments by finding government officials in contempt—but the new Senate replacement could make it all but impossible to obtain a preliminary injunction or restraining order against the government in the first place.

The House’s Attack on Judicial Authority

In the original House version, a single sentence buried in a roughly 1,100-page bill, would have conditioned a court’s exercise of its contempt power on requiring a bond any time a party seeks an injunction. Rule 65(c) of the Federal Rules of Civil Procedure already provides for a bond as security for injunctions. The purpose of the bond is to compensate the party being sued for any losses it incurs if it follows the injunction but eventually wins the case on its merits. Yet in cases involving constitutional rights or limits, the government (at least until recently) rarely sought such a bond. For good reason: It is a hallmark of American exceptionalism that we fight our battles in the courts rather than the streets, so the courts wanted to ensure access for citizens to defend their basic rights in the courts.

The judicial contempt power allows courts to impose civil fines or criminal penalties on entities or officials who disregard their orders. This basic power of the courts traces back to the 14th century in England. It was specifically authorized in the first session of the U.S. Congress in the Judiciary Act of 1789.

Judges rarely have to resort to contempt, given that most public officials (and private parties, for that matter) obey court orders. But this power is essential if the judiciary is to perform its crucial role, set forth in The Federalist No. 78 and Marbury v. Madison, to hold the more powerful political branches to the boundaries of their constitutional authority.

And yet this proposed House provision was relatively easy to evade. Courts could have minimized the impact by ordering bonds to be posted in a nominal amount, say, a single dollar. But the threat was not ephemeral. In an ongoing case challenging grant cancellations, the Trump administration reportedly asked the judge to require a bond for the entire amount of the grants. Likewise, conservative challenges to President Obama’s DACA executive order, to President Biden’s student loan forgiveness order, or to Covid orders could have faced insurmountable financial obstacles had courts ordered bonds for the entire amount of the economic consequences, in some cases totaling in the billions. No plaintiff, much less a nonprofit law firm, could come up with the sums required.

Protecting the Government Instead of Citizens

The Senate could have merely stripped this provision under the so-called Byrd rule, which excludes “extraneous” matters from budget bills.

Instead, the Senate bill substituted a new version. This time, it does not focus on the contempt power but instead targets temporary restraining orders and preliminary injunctions. These are rulings that demand that the government halt the enforcement or implementation of a policy immediately, pending the final outcome of the case, if the judge concludes that it is likely the plaintiffs will prevail against the government in the end.

Just imagine, for instance, that during Covid, courts could not stop executive orders closing down houses of worship unless millions of dollars were posted in bonds. Or an executive order confiscating guns. The basic idea of a temporary restraining order or preliminary injunction is to prevent the damage to the rights and well-being of citizens from the government carrying out an action or policy that is likely to be found illegal or unconstitutional.

The new Senate version turns that logic on its head, instead seeking to protect the government from any costs that might be incurred from citizens asserting their rights.

This new version no longer tries to take away the power to enforce rulings through contempt. Nor does it apply retroactively, which could have caused chaos and brought settlements in many old cases into doubt. But it imposes a requirement that plaintiffs suing the federal government post a bond “in an amount proper to pay the costs and damages sustained by the Federal Government.” Crucially, “No court may consider any factor other than the value of the costs and damages sustained.” That could mean that they can’t consider the potential damage to the plaintiffs from the government’s actions, nor can they consider the plaintiffs’ ability to pay.

Requiring potentially massive bonds to enjoin government action could prevent many or even most such lawsuits from being filed in the first place, because few would have the means to pay upfront. That is especially true in cases involving sweeping policies where the government could claim “costs” in the billions. Only state governments could conceivably post bonds in that amount, though they would also balk at the potential hit to their budgets.

This means that many parties would have no choice but accept violations of their rights rather than seek legal redress, severely undermining the Constitution.

This provision is no doubt inspired by the so-called nationwide injunctions issued against many of the current administration’s actions. That issue has evoked numerous reform proposals and may soon be addressed by the U.S. Supreme Court. This proposal sweeps the “problem” away by largely rendering preliminary injunctions against an administration impossible, truly throwing the baby out with the bathwater. If you are certain that your “side” will forever be in power, and will do no constitutional wrong, maybe this is a good idea. But it removes recourse against excesses by executive officials, both Democrat and Republican.

Not the Only Effort to Neuter the Courts

This provision is one small part of a greater effort to neuter and neutralize the federal courts, an effort that includes bills of impeachment over objectionable court rulings and threats of defiance of judicial orders and of suspending the writ of habeas corpus. The point of such efforts, according to Mike Davis, architect of a project called Article III, is to hold the “Sword of Damocles over the judiciary's head,” which requires that “you need to go after this on multiple fronts."

In The Federalist No. 78, Alexander Hamilton prophesied that the judiciary would always be the weakest of the three branches of government for it possesses “neither FORCE nor WILL, but merely judgment.” Yet its authority “to declare all acts contrary to the manifest tenor of the Constitution” was vital to the protection of individual rights. This prevention would limit one of its few tools to enforce such authority.

Either limiting the courts’ contempt power or creating new financial obstacles to enforcing constitutional boundaries will greatly damage our constitutional republic. Preserving our freedom for posterity requires not only eternal vigilance, but alertness to threats that arise in unexpected places.

Clint Bolick is a justice on the Arizona Supreme Court. He does not take a position on the views expressed elsewhere on this website.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

The battles over President Trump’s revenge orders against Big Law firms seem, on the surface, to have settled into a quiet period.

Trump has issued a series of executive orders seeking to punish law firms associated with his political opposition. The penalties against these firms include:

moving to strip … lawyers of security clearances, restricting … lawyers’ ability to enter or be present in federal buildings, and requiring agency heads to review the federal contracts of any company that has a client relationship with [the targeted firm], even if that firm does not represent them on federal business.

It has been weeks since Trump has entered any new decrees of this sort, and the list of firms settling with him by arranging to donate pro bono services to causes he finds agreeable has been stable since April 11, at nine (most of which he never actually targeted in decrees). While it seems likely that his expectations differ from those of the law firms on exactly what they were committing to, we have not had the benefit of a full clarification on that point.

Perhaps most significantly, two firms, Perkins Coie and WilmerHale, have obtained permanent injunctions on summary judgment broadly blocking their decree, subject to appeal, from Judge Beryl Howell and Judge Richard Leon, respectively. Another firm, Jenner & Block, has won a temporary restraining order.

All of which might make you imagine the danger is fading. It shouldn’t.

Contempt for the Courts

What judicial relief we’ve seen has only partial reach and would be hard to enforce under the best of circumstances. And the present circumstances are anything but the best, given the Trump administration’s willingness to flirt (and more than flirt) with contempt of court and outright defiance of court orders, and given approaching threats in Congress to courts’ ability to enforce their orders at all.

For example, the challenges to the penalty decrees have often omitted the provisions that arbitrarily denied security clearances to lawyers at a firm disliked by Trump. Avoiding such a challenge may have seemed prudent—no one can exactly predict how much deference courts will accord to the president’s broad authority on security clearances. But it leaves a hole that can be gaping because a Big Law firm representing leading tech or industrial companies is inevitably going to generate a certain number of cases requiring the use of lawyers with clearances on matters such as defense procurement administration. Losing those large clients would be a heavy penalty for continued independence from Trump.

Other parts of the decrees are more clearly subject to being enjoined. But the question is then how readily the court can enforce its will. For example, a judge may nix the part of a presidential decree that forbids federal employees from speaking to lawyers from a banned firm, even to give routine regulatory guidance or negotiate the settlement of a tax or property dispute. But it could prove hard to nail down contempt if an agency aware of White House wishes doesn’t formally exclude a banned law firm but simply gives an endless runaround to its appointment requests while continuing to do business as usual with favored firms.

The same applies to the provisions discouraging federal agencies from awarding contracts to private firms that are clients of a banned law firm. Can you prove for certain that’s why your client lost its contract renewal? Clients can get the message pretty quickly.

And if a court finds there was contempt, can it enforce it? Not if the president’s allies in the House of Representatives get their way. Extraordinary language in the pending reconciliation budget bill would bar courts from enforcing most contempt orders, whether on alien removals or on any other subject—a blow to efforts to hold Trump agencies accountable. More generally, this insidious provision, which has got nearly not as much attention as it deserves, would inflict massive damage on the rule of law and individual rights.

Measure by Fear

If you want to measure whether the danger has passed, measure by fear. When CBS’ 60 Minutes—which has come under its own pressure from Trump to temper its criticism—decided to report on the attack on law firms in a segment earlier this month, its first problem was to find anyone willing to speak on the record. “It was nearly impossible to get anyone on camera for this story,” its report began, “because of the fear now running through our system of justice.”

Small wonder our friends Greg Lukianoff and Adam Goldstein at FIRE (Foundation for Individual Rights and Expression), which joined the same amicus brief that the Cato Institute authored in the Perkins Coie case, wrote in a recent account (that is well worth reading in its entirety): “Of the many things the Trump administration has done in the last 100-and-change days that have impacted free speech, the threats to law firms might be the most troubling.”

As with many of its other attacks on the American system, the Trump administration seems to expect that its attempt to destroy the independence of the legal profession will generate outrage at first, but that reaction will fade as the story is no longer new. For precisely that reason, it is vital to keep attention—and public pressure—focused on this story, because this is still just the beginning of this threat, not the end.

An earlier version of this piece was originally published at Cato At Liberty.

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

The Trump administration has launched a multi-faceted assault on many aspects of our constitutional system, ranging from illegal deportations of immigrants to blocking legal migration by unconstitutionally declaring a state of “invasion,” to usurpation of congressional authority over federal spending and tariffs. These efforts have, in turn, encountered resistance by means of both litigation and political mobilization. But there has been little consideration of how the two types of resistance to Trumpism relate to each other. There are often important synergies between litigation and political action. Each can bolster the other. Such synergies don’t always happen—and there are situations where litigation might actually undermine political efforts. Still, activists and litigators can act in ways that maximize synergies, while mitigating potential downsides.

Throughout modern history, successful constitutional reform movements have generally combined litigation and political action, not relied exclusively on one or the other. That was true of the Civil Rights Movement, the women’s rights movement, same-sex marriage, and movements to expand property rights and gun rights, among others. Litigation can bolster political action, and vice versa.

These dynamics are also evident in the early results of litigation against some of Trump’s abuses of power, most notably in immigration and trade.

How Winning in Court Can Move Public Opinion

The most obvious and powerful way litigation can stimulate political action is by highlighting sympathetic cases and drawing public attention to them. Abolitionists like future Supreme Court Chief Justice Salmon P. Chase pioneered this strategy by bringing cases challenging the rendition of sympathetic fugitive slaves under the Fugitive Slave Acts. This highlighted the injustice of slavery for northern whites and bolstered antislavery political movements. Thurgood Marshall and other civil rights lawyers used similar tactics, for example by emphasizing cases where innocent Blacks were railroaded by a racist criminal justice system, and sympathetic children were consigned to inferior segregated schools, based solely on race. The sight of police and mobs blocking Black children from attending integrated schools as required by the Supreme Court’s ruling in Brown v. Board of Education helped mobilize public opinion against segregation, paving the way for new federal legislation.

More recently, the Institute for Justice (a libertarian public interest firm) litigated the case of Kelo v. City of New London, challenging the condemnation of homes for private economic development. In a badly flawed 2005 ruling, a narrow 5-4 Supreme Court majority rejected IJ’s argument that this taking violated the Fifth Amendment’s requirement that eminent domain can only be employed for a “public use.” But the decision caused a public outcry that led to the enactment of eminent domain reform laws in 45 states. While about half the new laws were ineffective, there was still a huge net gain for the cause of property rights. If not for the publicity generated by the Kelo case, most voters would have remained blissfully unaware of the problem of eminent domain abuse. Even a losing battle in the courts can sometimes stimulate a political victory.

A similar dynamic has played out with recent litigation challenging Donald Trump’s cruel immigration policies. In the 2024 election, immigration and border issues were significant political assets for Trump because a large majority of the public supports deportation of “criminal” migrants, especially those who committed violent crimes or entered the U.S. illegally. But deportation of peaceful migrants, particularly legal ones and those with longstanding roots in the U.S., is far less popular and opposed by majorities, according to most polls.

Multiple high-profile cases have been filed challenging such actions as the: deportation of non-criminal (often legal) immigrants without due process under the Alien Enemies Act; deportation of foreign students for their political speech; imprisonment and wrongful deportation to El Salvador of immigrants such as Abrego Garcia (whose case reached the Supreme Court), among others. Such policies are generally unpopular, and ongoing lawsuits have helped to focus public attention on them. Like Brown and Kelo, many of these cases featured dramatic and sympathetic facts, such as innocent men torn from their families, despite the lack of any meaningful evidence of criminal activity.

As a result, Trump’s once strongly positive public approval ratings on immigration have turned negative within just a few months—a remarkable shift. Litigation is not the only cause of this change. But it—and the resulting publicity—likely played a significant role. Absent the court cases, especially the extra media coverage that those that reached the Supreme Court received, there would have been likely far less public attention focused on unpopular aspects of the Trump immigration agenda. Survey and experimental evidence indicate that media coverage of the Abrego Garcia case hurt Trump’s approval ratings on immigration issues and reduced public support for mass deportation.

I have argued that deporting even immigrants convicted of crimes is unjust, because arbitrary circumstances of ancestry and place of birth should not subject them to greater punishment than others who commit the same crimes. But this position is highly unpopular. If Trump had been able to keep public attention on deportation of illegal immigrants who committed crimes, his immigration agenda would have remained relatively popular. Lawsuits have weakened his political position and thereby facilitated political mobilization against his policies.

Litigation that challenges—and thereby highlights—unpopular policies can play a key role in increasing public awareness of an issue and help mobilize political action against it. The opposition to Trump should take this lesson to heart and seek to bring more cases that fit this description.

Public Opinion Leads to Victories in Court

If litigation can bolster political action, the opposite is also often true. Historically, shifts in public opinion brought on in part by political movements have helped pave the way for judicial interventions that would not have been feasible otherwise. Brown v. Board of Education was in large part made possible by liberalizing shifts in public opinion on racial issues over the preceding decade. Craig v. Boren, the 1976 decision in which the Supreme Court ruled for the first time that laws discriminating on the basis of sex are presumptively unconstitutional and subject to heightened scrutiny, was in part a result of years of opinion-shaping activism by the feminist movement. Such a decision would have been impossible in earlier eras.

More recently, shifting public opinion—influenced in part by the efforts of the gay rights movement, as well as more positive portrayals in film and television—helped make possible the Supreme Court’s ruling in Obergefell v. Hodges (2015), which struck down laws banning same-sex marriage. A few months earlier, Supreme Court Justice Ruth Bader Ginsburg openly stated that the shift in public attitudes had paved the way for such a ruling, whereas earlier she had feared the public was not ready for it.

Public opinion bolsters judicial action in part because court decisions do not enforce themselves. Judges have little direct coercive authority and must rely on public support and the cooperation of officials in other branches of government. Such cooperation and support is more likely if a ruling has substantial public approval. Most judges, especially those on the Supreme Court, are well aware of this connection.

The dynamic of public support bolstering judicial review may be at work in current legal battles challenging Trump’s imposition of massive tariffs, potentially starting the biggest trade war since the Great Depression. These tariffs are highly unpopular, in part because opponents have effectively publicized the reality that they will increase prices. Studies show that mention of price effects is an effective way to stimulate public support for free trade. The U.S. Court of International Trade recently invalidated the “Liberation Day” tariffs in a case that the Liberty Justice Center and I filed on behalf of five businesses harmed by the tariffs, and in a similar case filed by 12 state governments. A recent Morning Consult poll shows that a large majority of Americans supported the decision. It would have been harder for courts to invalidate a major presidential initiative if public and elite opinion were firmly behind it.

This doesn’t mean that courts simply “follow the election returns.” They are often willing to ignore majority opinion, especially in low-profile cases that attract little or no public attention (which form the vast bulk of judicial dockets). Even if a majority, in principle, opposes a given decision, there is unlikely to be much of a backlash against the ruling if most voters don’t know about it. Scholars have also documented how courts will sometimes follow elite opinion above the general public’s when the two conflict. For instance, on race and sex discrimination, same-sex marriage, and possibly Trump’s tariffs, highly educated elites were more supportive of judicial intervention than the general public, and this has an impact on judges, who are themselves obviously members of the educated elite.

Few judges are likely to strike down a policy solely because public or elite opinion favors doing so. But if they are generally sympathetic to the legal case, such backing is likely to make them more willing to act on those instincts. Contrariwise, they may hesitate if they sense strong widespread opposition. As Michael Klarman has shown, the same Court that decided Brown v. Board in 1954 dodged an opportunity to strike down laws banning interracial marriage the next year, for fear of political backlash. They did not make such a ruling until 1967, by which time public opinion was more supportive.

Less Noticeable—But Notable—Benefits of Winning in the Court of Public Opinion

Public and elite support is also important to incentivizing compliance with judicial rulings. The Trump Administration has arguably flouted court orders in several cases, and made noises about doing so more broadly. But so far, with a few important exceptions, they have obeyed a majority of court rulings against them, even in immigration. That modicum of restraint is probably not because they have any deep commitment to the rule of law. A more likely explanation is that they know defiance of court orders is highly unpopular and would generate a backlash. An April Pew Research survey shows that 78% of Americans believe Trump must follow all court orders; even a large majority of Republicans agree. Plus, many lower-level government officials (influenced by public and elite opinion) may not follow orders to engage in such defiance.

Trump’s opponents would do well to highlight the dangers of such defiance and reinforce public opposition to it.

If courts often won’t make major rulings until they sense sufficiently broad public support for doing so, one might ask why those rulings matter at all. Why not just work through the political process?

The answer is that even relatively popular reforms protecting individual rights and limiting abuses of government power are often hard to push through politically, and judicial review can accelerate the process. While public opinion on race in the 1950s and same-sex marriage by 2015 had shifted in a more liberal direction, many more racist and more socially conservative states would have maintained segregation and laws banning same-sex marriage for many more years if not for judicial intervention. Absent the Obergefell decision, some states would undoubtedly still ban same-sex marriage today. Similarly, the unpopularity of Trump’s tariffs is not enough to muster two-thirds veto-proof majorities needed to pass effective legislation to overturn them.

Opponents of Trump’s dangerous and illegal power grabs should learn from history and pursue strategies that combine litigation and political action. Tariffs and some types of immigration issues are particularly promising opportunities to further exploit these synergies. Ideally, Trump’s opponents can create a virtuous circle: Lawsuits targeting his more unpopular policies can make them—and him—more unpopular, which in turn paves the way for additional litigation on a wider range of issues.

Pitfalls and Limitations of a Dual Strategy

While pursuing synergies between litigation and political action are a promising strategy, such an approach does have limitations and potential pitfalls.

It is particularly important to recognize the limits of public attention and knowledge. Survey data shows most voters pay little attention to politics, and often don’t know even basic information about government and public policy—including judicial decisions. This makes it hard to attract public attention to more than a few legal battles at any given time. That dynamic limits the number of situations where advocates can count on judicial decisions, even important ones with sympathetic facts, moving public opinion. For every Kelo, there are numerous rulings that have little impact on public opinion because most voters don’t learn about them. Legal and political elites are more aware, however, and their attention is easier to capture.

Some complex legal issues, moreover, are difficult or impossible to present to the public in a way that enables people to grasp their significance. That doesn’t mean litigation in such cases is a bad idea. But it does mean it cannot rely on a boost from mobilizing public opinion.

In addition, while litigation efforts promoting popular results can help mobilize public opinion in support of a cause, litigation promoting unpopular ones can have the opposite effect. To take a notable recent example, polls show strong majority opposition to allowing transgender women to play on women’s sports teams and use women’s bathrooms. High-profile litigation seeking such results may well have had the effect of stimulating public opposition to transgender rights.

That doesn’t necessarily mean that advocates were wrong to bring such cases. But it is important to consider the tradeoffs involved.

Efforts to stimulate judicial review by shifting public opinion also have limitations. In part because of widespread public ignorance and bias, such efforts often take a long time to bear fruit, as was true in the case of the Civil Rights Movement, among others. In the meantime, efforts to shift opinion can themselves generate backlash, and that backlash can sometimes affect judicial decisions, as well. Many scholars argue that the late-19th-century backlash against Reconstruction helped stimulate judicial rulings against equal rights for blacks, such as Plessy v. Ferguson (1896). On the other hand, there was a rapid shift in public opinion in the last few years before Obergefell. Litigation probably helped make that happen.

Despite such constraints, history shows that a strategy combining litigation and political action can often be highly effective. Opponents of Trump’s power grabs have already made some effective use of such approaches, and we would do well to do so more systematically.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

The Trump administration’s push to roll back limits on the president’s “removal power” did not come out of nowhere. Its effort to fire principal officers at the Federal Trade Commission, the National Labor Relations Board, and beyond has a long pedigree in the sane, buttoned-down wing of the conservative legal movement.

But while the argument for handing a president this authority has theoretical merit, the Supreme Court would be very unwise to bless Trump’s actions.

A Second-Best World

The conservative campaign for sweeping presidential removal power dates to at least 1988. That year, Justice Antonin Scalia—in a solo dissent that has since taken on near-mythic status—opined that, under the Constitution, a statute may not “deprive the President of the United States of exclusive control over the exercise of [executive] Power.” Two decades later (but still long before Trump), Chief Justice John Roberts—this time writing for the majority—declared that the president needs the power to “oversee the faithfulness of the officers who execute” the laws on his behalf.

Given these views, Trump’s firings of principal officers, though rash, do not belong in the same category as Trump’s more deranged excesses, such as his political attacks on law firms or his campaign to imprison detainees abroad without due process—measures that judges across the ideological spectrum have slapped down.

The “removal power” should not be confused with the notion, floated by Trump and his allies, that the president may purge the civil service. We are dealing, rather, with the president’s authority over the high-level political appointees—those referred to, in Article II of the Constitution, as “Officers of the United States”—who lead federal agencies.

When it comes to such officials, Scalia and Roberts, along with many other conservative judges, offer not only a plausible reading of the Constitution’s original meaning, but also a prudent approach to managing our sprawling administrative state—prudent, that is, in a world without Trump.

In a constitutional system working as the Founders intended, there would be no problem with the president having the power to remove all officers at will. That arrangement would ensure an energetic and accountable executive branch. In Hamilton’s words, “unity” in the executive enables “decision, activity, secrecy, and dispatch,” while supplying “a single object for the jealousy and watchfulness of the people.” He warned that diffusing executive power would be dangerous, as doing so would cause “the restraints of public opinion” to “lose their efficacy,” with the buck stopping nowhere. A unified executive, by contrast, keeps the bureaucracy responsive to the president’s agenda, giving us a government that, to paraphrase Roberts, benefits from expertise but is not ruled by experts.

But that logic assumes a virtuous republic—the kind of society men like Hamilton, Madison, and Adams believed essential for our Constitution to endure. “To suppose that any form of government will secure liberty or happiness without any virtue in the people,” Madison wrote, “is a chimerical idea.”

We do not live in that republic. Our electorate does not reliably choose presidents capable of exercising vast authority with restraint. Our Congress lacks the spine to impeach when it matters. We reside in a second-best world, in which our Supreme Court is limited to second-best choices.

The Reckoning

In 1935, the Court held that Congress may grant certain officers protection against removal except “for cause.” The case, Humphrey’s Executor v. United States, concerned the FTC, whose commissioners can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Motivated in part by unease with Roosevelt’s New Deal, the Court upheld the restriction.

The Roberts Court has spent years laying the groundwork to overturn Humphrey’s Executor. In Seila Law v. CFPB (2020), Roberts all but confined Humphrey’s Executor to its facts, announcing, for the Court, that it applies only to “multimember expert agencies that do not wield substantial executive power.” That description covers at most only a small sliver of modern independent agencies. Seila Law rejected an attempt to limit the president to “for-cause” removals for the head of a single-director agency, but its logic and rhetoric pointed toward a broader reckoning one day.

As Trump’s firing spree continues, that day may be here. On May 22, the Supreme Court stayed lower-court orders blocking the removal of two officials—Gwynne Wilcox of the NLRB and Cathy A. Harris of the Merit Systems Protection Board. That move must, Justice Elena Kagan warns in a dissent, reveal the majority’s intent to overturn, or gut, Humphrey’s Executor at the earliest opportunity.

The Court’s conservative majority has good reason to view Humphrey’s Executor with skepticism. The decision rests on a nonsensical distinction, under which the FTC is a “quasi-judicial” and “quasi-legislative” agency. There are no “quasi” branches in our system of government. In recent years, the Court—with liberal justices signing on—has acknowledged that agencies like the FTC exercise executive power (even if their activities sometimes take legislative and judicial forms). While the liberal justices dissented forcefully in Seila Law and challenged the conservatives’ embrace of a so-called unitary executive, they didn’t defend Humphrey’s Executor on its own terms. They focused on Congress’ power over government offices; a competing view of the historical record; and the functional benefits of independent agencies. Writing on this site recently, Peter Shane, a law professor at New York University, made similar points.

The fate of the removal power rests with the Court’s three moderate conservatives: Chief Justice Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. There is little doubt that the Court’s three arch-conservatives—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—will vote to overturn Humphrey’s Executor. Roberts, Kavanaugh, and Barrett must decide whether to join them.

Constitutional Purity in an Impure World

As the Supreme Court’s May 22 order confirms, the conservative justices are clearly tempted—this is their chance to achieve an abiding goal. My message to them is simple: Don’t.

Do not view Humphrey’s Executor in isolation. Do not view its status as part of some exercise in constitutional purity. Understand that, by overturning it, you’d be handing power to an authoritarian, exacerbating a perilous moment for the country. Do the right thing and defend the checks on an aspiring autocrat that still exist.

Crucially, I am not asking Roberts, Kavanaugh, and Barrett to adopt some novel doctrine or to become “judicial activists.” They need not even change their views about the removal power’s original meaning. Their task is simply to wield their power responsibly, and to uphold the law as it exists. That, indeed, is the conservative thing to do. There is an opinion they could write—modest, measured, respectable—that would affirm Humphrey’s Executor and leave the current limits on the removal power intact.

Here are the three main issues that opinion must address:

1. The Scope of Humphrey’s Executor

The first hurdle, for a majority intent on upholding Humphrey’s Executor, is the claim that upholding Humphrey’s Executor doesn’t mean anything.

The Trump administration contends that Humphrey’s Executor is a “narrow exception”—one that no longer applies even to the FTC itself. The FTC of 1935, the argument runs, is the only agency for which Humphrey’s Executor blesses removal restrictions. “What matters,” Seila Law says, “is the set of powers the Court” in Humphrey’s Executor “considered as the basis for its decision.”

But the FTC of 1935 already wielded executive power, and the Court considered that power in Humphrey’s Executor. As the decision notes, the FTC could enforce the law in court. Its powers have indeed expanded—it can now, for instance, obtain court orders more easily than before—but disputes over the removal power should not devolve into disputes over the precise calibration of agency authority. In such a world, observes Judge Don Willett, a conservative on the Fifth Circuit, it would be “hard to tell how much [executive] power is required before an agency loses protection under the Humphrey’s exception.”

Writing for the Court in Collins v. Yellen (2021), Justice Alito rightly warned that “courts are not well-suited to weigh the relative importance” of disparate agencies’ authority. He rejected the idea that “the constitutionality of removal restrictions hinges on such an inquiry.” In Collins, the Court was clarifying that it would not draw fine-grained lines among single-director agencies; they all lack removal protection. But the same logic applies here. Courts should not draw fine-grained lines among traditional multi-member commissions; they all ought to enjoy removal protection.

To uphold Humphrey’s Executor should be to uphold the independence of the familiar multi-member agencies whose structure was, until recently, broadly accepted.

2. Stare Decisis

“Stare decisis et non quieta movere” means “To stand by things decided and not disturb what is settled.” As Justice Kavanaugh will tell you, the principle reaches back to the Founding. Fidelity to precedent ensures, he writes, quoting the eminent 18th-century jurist William Blackstone, that “the scale of justice” is “even and steady”—that it is not upended by “every new judge’s opinion.”

By definition, stare decisis has teeth only when the justices encounter a precedent with which they disagree. That a decision is wrong, in their eyes, is the start, not the end, of any argument over whether stare decisis applies. As the Court has said many times, there must be some special justification, beyond sheer error, for overturning a precedent.

There is no such justification for overturning Humphrey’s Executor.

To begin with, the decision is not even obviously wrong. True, its reasoning is very poor. (“The mere retreat to the qualifying ‘quasi,’” Justice Robert Jackson mused in 1952, “is implicit with confession that all recognized classifications have broken down.”) But the result is quite possibly correct. The history of the removal power is a subject of spirited judicial and scholarly debate. Justice Kagan’s dissent in Seila Law is excellent. There may be stronger and weaker answers here, but there are no definitive ones. The Framers did not exactly write with clarity on this question in the Constitution, as they did with the appointments power.

The Court often asks whether a precedent is “unworkable”—whether it has sowed confusion in the lower courts or distorted other areas of law. Humphrey’s Executor does neither. If anything, the Court could declare that its rule is straightforward: traditional multi-member agencies get removal protections; novel structures do not. That’s already the line taken in Seila Law (no protection for single-director agencies) and Free Enterprise Fund v. PCAOB (2010) (no double-level removal protections).

The rule is not just workable, but sensible. Independent agencies have a venerable history that stretches back to the FTC (1914), if not the Interstate Commerce Commission (1887). They may not reflect a pristine form of the separation of powers, but neither are they pure constitutional heresy. While on the D.C. Circuit, future Justice Kavanaugh went so far as to say that “multi-member bodies reflect the larger values of the Constitution.”

That last point answers perhaps the biggest objection to Humphrey’s Executor, namely, if commissioners aren’t elected, and can’t easily be fired by someone who is, where’s the democratic legitimacy? But these agencies are created by an elected Congress. Their officers are nominated by an elected president and confirmed by an elected Senate. Once appointed, they get summoned to the White House and are also grilled by Congress at oversight hearings.

The Court sometimes asks whether a precedent has produced bad consequences. Here, however, the bad consequences would come from overturning the precedent. Looming behind all else is the Federal Reserve. That independent body sets interest rates free from political meddling—a buffer that has served the country well. If the Fed became the plaything of this impetuous president, the result could be a financial crisis. In its May 22 order, the Court insists that the case before it doesn’t necessarily implicate the Fed. But in going out of its way to say so, the Court protests too much. Justice Kagan, in dissent, accuses the majority of cynically setting the stage for “a bespoke Federal Reserve exception.”

The Roberts Court has chucked a string of notable precedents. (If you ask me, many of those precedents had it coming, and the conservative majority has nothing to apologize for.) But stare decisis exists for a reason: It keeps the law stable, consistent, and predictable. Roberts, Kavanaugh, and Barrett shouldn’t overturn decisions in order to check boxes on an ideological wish list. Holding their noses and preserving Humphrey’s Executor would be a good way to show that they know where to stop.

3. Remedy

The final question the Court needs to address to preserve Humphrey’s Executor is: What is the remedy?

There are three options: an injunction, a declaratory judgment, and a writ of mandamus.

To issue an injunction, a court could invoke its inherent equitable powers. When they dig into it, the justices will find 19th-century cases that say blocking the removal of executive officers wasn’t such a power, and 20th-century cases that say, in essence, never mind. At a recent oral argument, D.C. Circuit judge Gregory Katsas—no one’s idea of a liberal—asked why courts should be “fussing over” the arcane distinctions between injunctions and mandamus. Perhaps the Supreme Court’s conservatives will agree. More likely, they’ll cling (as they have in past cases) to the historical lines. If they do, injunctions are out.

A court can undoubtedly issue a declaratory judgment, so the question of authority is resolved. But such a judgment is limited to merely spelling out the legal rights of the parties; it doesn’t compel anyone to act. So what would it accomplish? In a 1992 decision, the Court “assume[d]” that a president would “likely abide” by a district court’s reading of a statute, even if he wasn’t strictly bound by it. That assumption no longer holds. Trump would see a declaratory judgment not as a constraint, but as a challenge.

That leaves mandamus—an order, in this case, directing Trump to reinstate the fired officials. This was apparently a standard remedy, in the English courts of old, for addressing wrongful removal. Mandamus is an extraordinary remedy, reserved for clear violations of law. But Trump’s defiance of the statutory removal restrictions could not be clearer.

Nothing prevents the courts from ordering reinstatement via mandamus except the fear that it might look aggressive. As Judge Neomi Rao, a conservative on the D.C. Circuit, frames things, issuing such a writ “threatens to send” the judiciary “headlong into a clash with the Executive.” But it is Trump who is creating this collision—not the courts.

Yes, Trump could ignore a writ of mandamus. A president can always manufacture a constitutional crisis by defying a court order. Trump could blow off an order enjoining the removal of an officer—or the detention of college students, or a purge of federal employees, or the impoundment of federal funds. “At that point,” Judge Laurence Silberman once wrote, “we would be headed, in accordance with our temperament, either to the basement or the barricades.”

Maybe that’s where we’re going. But it’s no use for courts to preemptively retreat every time they fear the president won’t listen. If that’s the plan, the republic is already lost.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

Dear Readers:

Many of Donald Trump’s abuses of presidential power are clear-cut, based on well-recognized law and precedent. In other cases, though, he has been probing areas where the legal precedents have not been tested in many years, so there is more confusion about the limits of legitimate executive power. One of those areas is Trump’s attempt to exert control over independent executive agencies such as the Federal Trade Commission and the Federal Election Commission—calling into question whether there is such a thing as an “independent” executive agency.

This issue is now before the Supreme Court, which earlier this month stayed a lower court’s ruling that voided Trump’s firing of two heads of such agencies. The administration’s hope is that the conservative Court will overturn a foundational 90-year-old legal precedent that said Congress can limit the president’s power to fire the heads of agencies and shield them from politics. The case is scheduled to be decided by July.

The central question is whether the court will adopt an expansive version of a theory, long championed in some conservative circles, known as the “unitary executive.”

In an incisive and closely argued piece adapted from his essay published first in The Regulatory Review, New York University’s distinguished constitutional scholar, Peter Shane, makes the case that this would be a gross misinterpretation of the Constitution.

Robert Tracinski
Director of Executive Watch

During the first two months of his second administration, President Donald Trump claimed the power to fire at will four principal officers of independent agencies protected by statutes that prohibit their discharge except for good cause: National Labor Relations Board member Gwynne Wilcox, Merit Systems Protection Board member Cathy Harris, and two members of the Federal Trade Commission, Alvaro Bedoya and Rebecca Kelly Slaughter. On Feb. 18, 2025, Trump also issued an executive order entitled “Ensuring Accountability for All Agencies,” purporting to subject independent agencies to significant oversight by the Office of Management and Budget, which is part of the Executive Office of the President.

Under a 2020 Supreme Court decision, Seila Law v. CFPB, the Supreme Court interpreted Article II of the Constitution as guaranteeing presidents the right to fire at will the heads of agencies directed by a single individual, such as the secretary of a Cabinet department. What Trump is now asserting is the same power over the independent regulatory agencies, which Congress designed to be governed by bipartisan, multiple-member boards, protected against at-will presidential removal. If Trump succeeds in neutering these agencies’ independence, it will be because the Roberts Court embraces an embarrassingly specious version of the so-called unitary executive theory.

The modern independent agency design, which the U.S. Congress first adopted for the Interstate Commerce Commission in 1887, was intended to insulate agencies such as the National Labor Relations Board, the Federal Trade Commission (FTC), and the Consumer Product Safety Commission from politics and special interest pressures and hand them a degree of decision-making autonomy to make impartial decisions. To foster deliberation, members are protected by statute against being fired without good cause, and the relevant statutes typically provide that members will serve specific terms longer than four years and that neither major party can hold more than a bare majority of seats.

In contrast, President Trump’s campaign against agency independence is part of his undisguised effort to effectuate a radical dismantling of systems of checks and balances, and it goes hand in hand with his efforts to reshape the civil service, praetorian-ize the military, and staff the administration from top to bottom based on personal fealty, rather than qualifications and proven character.

Humphrey’s Executor versus Autocracy

If not for the prospect of the Supreme Court embracing the unitary executive theory, Trump would have to amend the U.S. Constitution to assert control over independent agencies. The constitutional reading he is relying on rejects the unanimous 1935 Supreme Court opinion in the seminal case Humphrey’s Executor v. United States. That ruling placed firm limits on an executive’s powers over independent agencies when it upheld the constitutionality of the Federal Trade Commission and held invalid President Franklin D. Roosevelt’s dismissal of an FTC commissioner, William Humphrey, without good cause and in violation of the FTC Act. The Trump administration has explicitly called for overruling Humphrey’s Executor, even though it was the product of a remarkable coalition of pro- and anti-New Deal Justices.

The theory behind Humphrey’s Executor is straightforward. It starts with the recognition that the executive branch of government draws on two streams of legal authority. Some of what it does involves carrying out powers vested directly in the president by the Constitution. Treaty-making and fulfilling the president’s commander-in-chief role are prominent examples. But most of what the executive establishment does—nearly all of what it does in domestic affairs—draws on authority that Congress has given to the executive branch by creating administrative agencies and assigning them missions, such as protecting the environment or enforcing civil rights. The core of independent agencies’ work in this respect involves both rulemaking, which the Humphrey’s Executor Court called “quasi-legislative,” and administrative adjudication, which it called “quasi-judicial.”

What the Court held in Humphrey’s Executor is that if an agency is of the latter kind—that is, the agency’s job description involves a mixture of quasi-legislative and quasi-judicial functions that are not within the president’s explicit Article II powers—then it is up to Congress to determine whether this kind of agency’s heads serve at the president’s pleasure. If such an agency’s role is essentially “to carry into effect legislative policies embodied in statute,” then Congress may protect its members against discharge except for good cause.

Against this entirely commonsense understanding, some proponents of the unitary executive theory insist on a vision of the Constitution that muddles the text, is weakly grounded in history, and ignores how executive power can easily metastasize into autocracy.

Many of today’s independent agencies, such as the Federal Communications Commission, were created at a time when Congress was giving executive agencies vast new powers, such as regulating the airwaves, which had obvious potential to be abused. The independence and bipartisanship of these agencies was part of a structural strategy Congress adopted to restrain such abuses and prevent the presidency from acquiring anything approaching dictatorial power. Moreover, before such agencies could bring their authority to bear on individual parties, the firms or individuals targeted would be entitled to formal administrative hearings, both to help assure fairness and to forestall precisely the possibility that the power of government could be used to reward friends and punish enemies.

That possibility is now playing out in real time.

Unitary Executive Theory’s All-Powerful President

The unitary executive theory rests on two foundational premises. The first is that the president, constitutionally speaking, is a one-person executive branch. The president, in the Court’s words from last year’s ruling on presidential immunity, is “the only person who alone composes a branch of government.” The second is that, in vesting “the executive power” in “a president,” the Constitution gave the president the entirety of the government’s executive power—not “some of the executive power, but all of the executive power,” in the words of the late Justice Antonin Scalia, who even italicized the words “some” and “all.”

Beyond these two premises, advocates of the unitary executive theory may differ as to the scope of the precise authorities that Article II confers. But virtually all advocates of the theory share a view that the Supreme Court embraced in a 5-4 decision rendered in 2020, Seila Law v. CFPB, namely that all executive branch personnel are “subject to the ongoing supervision and control of the elected President.” It follows, according to this theory, that the president must be able, directly or indirectly, to fire anyone in the executive branch. As noted above, Seila Law extended the president’s removal authority to the principal officer in charge of any single-headed executive agency, such as the Consumer Financial Protection Bureau. The Court held out the possibility, however, that multi-member bodies might remain as an exception to this rule.

President Trump wants to overturn the exception, so that he can fire independent board or commission members even without “good cause.”

The Constitution’s Checked-and-Balanced Executive

Given the practical and political implications of unitary executive theory, it is astonishing to see how little it lines up with the Constitution. First, it cannot be true that Article II gives the president not “some of the executive power, but all of the executive power.” Section 2 of Article II explicitly requires the Senate to participate in the executive powers of treaty-making and appointing so-called principal officers such as Cabinet secretaries. (Section 2 even leaves open the possibility that “Congress may by law vest the appointment of such inferior officers, as they think proper … in the courts of law.”) At most, Article II’s Vesting Clause gives the president whatever executive power is not otherwise constitutionally shared or regulated.

Even within the executive branch, the president is not the sole constitutional entity. One of the president’s Article II authorities is to “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.” The executive branch is thus foreseen as involving “executive departments.” With regard to those departments, the president has the duty to “take care that the laws be faithfully executed”—that is, executed by others. The text certainly reads as if “departments” are distinct and separate parts of the executive branch in a structure that can be (and has been) mandated by Congress.

The unitary executive theory retort is that the “departments” are just assistants to the president, not holders of executive power. But that is not what Article II says. The text just mentioned posits that departments have been assigned “duties”—presumably assigned through statute by Congress. It would have been weird to spell out a presidential power to make department heads write out their opinions concerning duties that the president has assigned to them. Thus, although the Trump administration and the Court refer to agencies as working “on behalf of” the president, they are, constitutionally speaking, working on behalf of Congress.

If one is looking for a comprehensive grant of power with regard to government operations, it will be found not in Article II, which governs the executive branch, but in Article I, which empowers the legislative branch. Article I authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution … all … powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” The most obvious reading of that language is that decisions as to how and by whom administrative functions shall be fulfilled—and whether administrators can be insulated from at-will removal—are subject to Congress’s determination as to what is “necessary and proper.” In short, read most straightforwardly, the constitutional text lines up perfectly with Humphrey’s Executor.

It is hard to credit the idea that the presidential removal power was central to the Founders’ interpretation of Article II when the issue went unmentioned at the Constitutional Convention. There is no indication that it played any role in ratification debates, either, and the First Congress sometimes placed administrative responsibilities in the hands of persons that the president could not fire.

The Right-Wing Dream of Presidential Power

The case is so strong for the correctness of Humphrey’s Executor—a decision regarded in 1935 as a conservative reading of presidential power—that one naturally wonders why, beginning with the Reagan administration, the unitary executive theory became a pet theory of the right. The most succinct and persuasive answer has been suggested by political scientists William Howell and Terry Moe. As they point out, every president wants to make a big mark and to move the country decisively in the directions promised in a presidential campaign. But such ambitions have different implications for progressive as opposed to conservative presidents.

Once Congress started enacting modern progressive legislation, especially from the 1960s onward, progressive presidents, usually Democratic, did not need to make bold constitutional arguments to accomplish their domestic goals. Their administrations could argue instead for generous readings of the statutory powers that Congress had already given them.

If, however, a president’s agenda is to hollow out government—to incapacitate agencies from implementing their legislative duties in a vigorous way—that president cannot rely on statutory power alone. Congress has not authorized the president to undo the administrative establishment it created. Thus, radically disruptive presidents of a Trumpian sort have to argue that their “executive power” includes more than the duty to take care that the laws be faithfully executed. They have to argue that, as a one-person branch of government, the president possesses the authority to restructure government, to narrow the reach of law, and to resist efforts by the other branches to check presidential initiative.

Before the Trump administration, the main debate, both judicial and academic, over unitary executive theory was focused almost entirely on presidential power to remove certain executive officers. But President Trump wants to take it further. His Feb. 18 executive order would require independent agencies to clear their regulatory actions with the Office of Management and Budget, align their program expenditures with the president’s policy priorities, and meet performance standards and management objectives prescribed by the White House. Such compliance, of course, would be the opposite of independence.

As radical as this seems, it is easy enough to see how President Trump is connecting the dots between the one-person executive branch idea and his unprecedented claims of entitlement to control every aspect of administrative government. If the president alone is the executive branch, then any delegation of authority by Congress to an administrative agency begins to look advisory. Congress may want the executive branch to do “something.” It may prefer for that “something” to be the task of a particular agency. But if the president is a one-person branch of government, then, constitutionally, it arguably follows that the president is entitled as possessor of all the executive power to take over an agency’s mission or even assign it to another agency. Indeed, at least some unitary executive theory champions explicitly argue something like this. If that is true, then what any administrator does depends not just on what authority Congress has delegated to the executive. It depends on the president’s willingness to leave that delegation in place and not take over personally. As pithily explained by the sociologist Kim Lane Scheppele, an expert on authoritarianism, “under the unitary executive theory, agencies no longer trace their primary constitutional authority to congressional delegation of its legislative powers but instead to presidential delegation of his executive power.”

This is why President Trump thinks he can close agencies he does not like and put their authorities elsewhere. This is why President Trump thinks he can tell agencies not to spend congressionally appropriated dollars. This is why President Trump thinks he can convert all of the executive branch into an army of lickspittles. If Congress cannot regulate his supervisory power, and if his conduct, no matter how corrupt, can never be the target of prosecution, why not?

Kavanaugh to the Rescue?

President Trump’s apparent hope is that the Roberts Court will give him the control he craves over every corner of the administrative state.

But the radical implications of such a ruling should give us pause. It would, for example, undermine the independence of the Board of Governors of the Federal Reserve System, a decision that could destabilize both domestic and global markets. Yet it is difficult to see how Humphrey’s Executor could be overruled without invalidating the Federal Reserve’s independence. President Trump’s executive order tries to navigate this difficulty by controlling only the Federal Reserve’s “supervision and regulation of financial institutions,” but not “its conduct of monetary policy.” But members of the Federal Reserve cannot be half-fired, half-empowered.

It is also noteworthy that, as a judge on the U.S. Court of Appeals for the D.C. Circuit, Justice Brett Kavanaugh offered a strong argument for treating multi-member agencies differently from single-headed agencies. Indeed, all the independent agency virtues I mentioned at the start of this essay are acknowledged in his opinion. One cannot yet know whether he regards his arguments as sufficient when push comes to shove to draw a constitutional line between single-headed and multi-member agencies for removal purposes. But if he should take that view, and at least one other conservative Justice unites with the liberals, Humphrey’s Executor could survive.

The Roberts Court has already shown itself to be the most executive-indulgent Court since World War II, and we know where President Trump is placing his bet. Those who would prefer a more pluralist democracy—one that retains multiple, counterbalanced sources of power—can hope only that this gamble comes to naught.

An earlier version of this essay was first published in The Regulatory Review.

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.

Four days after taking office on a late Friday afternoon, President Donald Trump fired 17 inspectors general from a cross-section of federal agencies. That set a new record at one more than the number that Ronald Reagan fired upon taking office in 1981.

However, there are crucial differences between Trump’s dismissals and those of prior presidents. Trump’s order directly contravenes the mandated removal process for inspectors general while undermining the non-partisan independence of these vital government watchdogs. This is a clear violation of the Inspector General Act, which was signed by President Jimmy Carter in 1978. Carter’s intent was to instill public confidence in the probity and efficiency of government in the aftermath of multiple scandals at federal agencies during the Richard Nixon administration. It was, in the words of a Carter administration official, meant to address “the abuse of power” and the “misuse of the IRS and the CIA against domestic enemies.”

But Trump isn’t just ignoring the law, he has turned it on its head to vest supra-constitutional powers in Elon Musk.

Replacing Lawful IGs With an Unaccountable Oligarch

Presidents do have the power to replace inspectors general—even if Trump failed to follow the proper process for doing so. But the even more serious constitutional issue is who has functionally replaced those inspectors general. Our system of independent IGs—in which all of them go through a Senate confirmation process and are somewhat insulated from executive pressure—is tasked with looking for evidence of fraud, waste, and abuse in federal agencies. But they are now being replaced with a shadow agency headed by Musk, a super-inspector general who is accountable to nobody other than the president himself.

Musk has created a team of former private sector employees and Silicon Valley programmers under the banner of the Department of Government Efficiency (DOGE), which, despite its name, is not an official, Cabinet-level department. Musk claims DOGE will cut two trillion dollars in government waste and fraud, but it might actually be a way for Musk to remove government officials who have hindered his private companies and to target officials who do not politically align with the president. In that case, DOGE would just swap government waste, fraud, and abuse with corruption, self-dealing, and abuse.

Musk is acting like an inspector general despite having no legal authority to do so. And he is doing it in direct contravention of Congress’s confirmation power over major presidential appointments. That turns Trump’s flouting of this law into an impeachable offense on par with that once leveled at President Nixon.

If that all sounds incredible, start by looking at the justifications offered for firing the inspectors general by administration officials, and then compare those statements to the law. The email sent to notify the IGs that they were being fired was terse, just two sentences, and the only justification given was the president’s “changing priorities.” When queried, a senior White House official said only that they were “cleaning house of what doesn’t work for us going forward” and that the current IGs do not “align” with the administration’s goals. Trump’s own brief comment on the firings was that “it’s a very common thing to do” and “some people thought that some [IGs] were unfair or were not doing the job.”

But both the suddenness of the firings and the vagueness of the justifications offered are a violation of the law upholding our system of inspectors general. Trump is essentially turning back the clock to before the late-1970s, when presidents from both parties frequently weaponized federal agencies to target their political opponents.

In particular, the inspector general system was created in response to the Watergate scandal, which ultimately led to Nixon’s resignation. When his attorney general refused to fire the special prosecutor who had subpoenaed the damning Oval Office tapes that would have exposed Nixon’s involvement in the coverup, Nixon had the attorney general fired and replaced. His replacement also refused to comply, and also was then fired. The third functionary—future failed Supreme Court nominee Robert Bork—finally complied. Historians still remember Nixon’s actions that day as the “Saturday Night Massacre.”

A federal court ruled the dismissal to be illegal and an outraged Congress promptly launched the investigation into Watergate which ultimately pressured Nixon to resign a year later. Firing a special prosecutor was the last straw that led to Nixon’s impeachment. And inspectors general were created in imitation of special prosecutors as a position within the federal government that could operate at least semi-independently from presidential power to provide a check on abuses within the executive branch. Thus, Trump’s firing of the inspectors general is as directly a challenge to government accountability as was Nixon’s firing of the special prosecutor and the attorneys general.

Good Governance Out, Corruption In

The 1978 Inspector General Act was designed to insulate inspectors general from executive manipulation by requiring them to report to Congress. When an inspector general completes an investigation, they turn the report over to their agency head, who is allowed to offer comments on the report but who must turn the report over to Congress within seven days. In other words, agency leadership, which serves at the pleasure of the president, is not allowed to squelch the findings of their inspector general even when their findings are embarrassing to the agency or to the administration more generally.

This, as you can imagine, makes inspectors general unpopular with the White House. They are usually career civil servants—unlike the agency heads—and their reports are frequently a public relations liability. And since most IGs are holdovers from previous administrations, it is easy to suspect them of working against the interests of the current administration.

As a result, past presidents have attempted to wipe the slate clean by firing IGs. Reagan tried to remove 16 in 1981, although he was then pressured to rehire five by Congress. George W. Bush tried again in 2002, although he ultimately fired only two. Obama fired one. As a Bush administration official put it, presidents want someone who won’t “constantly play ‘gotcha’” or get “a little too enamored of their independent status” or “hurt the agency.” In this framing, IGs are not meant to prevent fraud and abuse per se; they are “there to help the agency.” Implicitly, that means making the agency—and, by extension, the administration—look good and not bad.

However, unlike with Trump’s dismissals, these earlier removals were legal because in the text of the 1978 law, Congress had assumed that presidents would not simply fire inspectors general because of the poor optics of removing government watchdogs. It signaled having something to hide to a public that had grown leery of White House abuses.

Clearly, that was insufficient incentive. And so in 2008, in response to Bush’s IG firings, the law was amended to require the president to provide Congress with 30 days of notice before actually removing an inspector general from office. The bill was co-sponsored by Republican Sen. Chuck Grassley, who also included stipulations that ensured that inspectors general could hire independent legal counsel and that their operating budgets could not be cut in retaliation by vindictive agency heads.

Late in his first term, Trump fired five IGs in a way that complied with the letter of the regulations but violated the spirit of the law. The first victim was Michael Atkinson, the inspector general of the intelligence community, who, ironically, had been appointed to that position by Trump himself. But Atkinson drew Trump’s ire by forwarding a whistleblower complaint to Congress. That complaint—about Trump putting pressure on Ukraine’s president to investigate Joe Biden—ultimately led to Trump’s first impeachment. (The other four IGs were fired after writing critical reports on the administration’s Covid pandemic response and for investigating Secretary of State Mike Pompeo’s use of agency resources for personal benefit.)

Trump complained at the time that Atkinson must not have been “a big Trump fan”—despite being a Trump nominee—because he had not offered Trump the courtesy of coming to see him in person about the whistleblower report before handing it over to Congress. “How can you do that without seeing the person?” Of course, Atkinson had simply been doing what the 1978 law obligated him to do. He was supposed to identify and forward information about potential waste, fraud, and abuse to Congress without, absurdly, having to clear that information with the person alleged to be responsible for that abuse or fraud! While it may have technically been legal for Trump to retaliate against an inspector general who had just been doing his job and who had refused to be swayed by partisan considerations, it was certainly unethical.

Trump: Even More Lawless Than Last Time

In response to the firings, Congress amended the law again in 2022, requiring the president to provide a “substantive rationale,” including “detailed and case-specific reasons” for firing an IG when giving its 30-day notice of intent to Congress. This would, ostensibly, raise the political costs of firing an inspector general by forcing the administration to provide a concrete explanation that could be analyzed and critiqued by Congress and the public.

What has changed in 2025 is that the second Trump administration has directly flouted the same rules that the first Trump administration had abided by. This time, the administration provided no 30-day notice to Congress. And it has offered no substantive reason for the firings. Trump’s “Friday Afternoon Massacre” is as intentional a violation of the law by an administration as any in U.S. history, and even more clearly a violation than Nixon’s “Saturday Night Massacre.” Trump is all but daring Congress or the courts to stop him.

It is possible, although not certain, that the courts could find even such mild restrictions—the 30-day notice and “substantive rationale” requirements—to be a violation of the U.S. Constitution’s Appointments Clause, which gives an executive broad authority in the personnel matters of the executive branch. Prior cases, like Myers v. United States, have established that formal advice and consent of the Senate is stipulated only for presidential appointments, not for removals.

But what is indefensible would be a president sidestepping the Senate’s appointment powers by, first, removing watchdog officials that have gone through the proper channels and, second, informally vesting those same powers instead in an unelected and non-confirmed private citizen. Even if the courts were to rule that the removal of the inspectors general was constitutional, the appointment of Musk as a substitute would remain a direct violation of the Senate’s authority.

Musk’s shadow organization, DOGE, is not a federal executive agency, and thus not accountable to Congress; instead, Musk took over and renamed the United States Digital Service, which had been little more than an IT consulting committee established by the Obama White House, as Andy Craig has written here. Yet, through DOGE, Musk has seized for himself not just the kinds of powers previously delegated to inspectors general but a position functionally above even agency heads themselves.

IGs are allowed to access agency data and communications, interview employees, and issue reports free from agency interference. Musk’s DOGE is exercising similar powers but taking them even further, seemingly acting as a back door for controlling executive agencies, accessing sensitive government databases, and surveilling and intimidating both federal employees and receipts of federal funding.

Musk’s Breathtaking and Lawless Power Grab

To provide just one example, DOGE staffers demanded that the U.S. Agency for International Development (USAID) give them access to the agency’s databases, which include classified information. When the staff refused, DOGE flunkies threatened to summon the U.S. Marshals Service to force them to comply or face arrest. When they refused again, the agency’s director of security was placed on leave. Musk himself, in the middle of the conflict, posted on X, “USAID is a criminal organization. Time for it to die.”

The reality is that USAID is an actual executive agency with its own duly appointed inspector general; but Musk is bypassing the inspector general and acting as if DOGE is not merely an advisory committee but is instead some kind of supra-agency that can operate above the law and beyond congressional oversight. His team of unvetted operatives, half a dozen of whom are 19- to 25-year-olds with vague titles, are bullying career government officials. All in order to provide their boss—a possible security risk due to his drug use and contacts with foreign officials—with access to USAID databases that include classified information, perhaps in service of Musk and Trump’s stated desire to shut down the entire agency.

Musk is publicly bragging about his access to information that he has no legal right to access. When DOGE came knocking at the U.S. Treasury and demanded database access, senior Treasury official David Lebryk resigned in protest, leading to a taunting tweet from Musk accusing the Treasury Department of funding known frauds and terrorists. Whether or not that is true, investigating such allegations is the job of the Treasury’s inspector general and not the CEO of the company formerly known as Twitter, let alone the likes of the DOGE staffer formerly known as “BigBalls.”

The Trump administration has gutted the inspector general system, with all its inconvenient requirements for transparency and accountability, and functionally replaced it with an unaccountable, shadowy, Musk-led organization over which Congress has no oversight.

But a demoralized and delinquent Congress, controlled by Trump’s party, has showed no will to stop this internal executive coup or to defend its own legislative prerogatives. Even Grassley, who authored the inspector general law, has only passively asked for “further explanation from President Trump.” Other Republican senators have been unable to summon even this much outrage. South Carolina’s Republican Sen. Lindsey Graham acknowledged that the firings broke the law but meekly and merely suggested that the administration “follow the law next time.”

Unlike in the 1970s, Congress today is asleep at the wheel. Nixon’s actions against a single government official sparked a congressional reaction that led to his impeachment and a wave of good governance reforms, including the creation of the inspectors general. Now, the most openly authoritarian president since Nixon fires a dozen and a half such officials in direct contravention of those reforms, and yet the most Congress can muster is a yawn.

There is another echo of the past in this current scandal. When President George W. Bush fired two inspectors general in 2002, he was following the advice of a white paper written by the Heritage Foundation just prior to his inauguration. The authors, who later took positions within the Office of Personnel Management, wanted to “reassert managerial control of government” and fire any officials who failed to support “the president’s election-endorsed and value-defined program.”

When President Trump purged the inspectors general, he was following the advice given in another project facilitated by the Heritage Foundation. That project, the notorious Project 2025, called for Trump to fire every inspector general and replace them with “their own IGs” in order to circumvent congressional oversight and give the administration “control of the people that work within government.” Meanwhile, Elon Musk’s allies at the Office of Personnel Management are doing their best to cut any programs and purge any officials that stand in opposition to the president’s agenda.

Trump could have chosen to fight waste, fraud, and abuse through legal channels. He could have chosen to respect the constitutional division between the branches of government. He could have tasked his agency heads to work with their inspectors general to root out budgetary excess and remove incompetent workers. But Trump did not do any of that.

Instead, he chose to work outside the law and invest supra-constitutional power in Elon Musk, an unelected, unvetted, and unconfirmed individual who has created a shadow executive agency that operates beyond accountability or oversight.

© The UnPopulist, 2025

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.

We welcome your reactions and replies. Please adhere to our comments policy.