“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” – James Madison, Federalist 47
Donald Trump’s first ten days in office amounted to a blitzkrieg against our constitutional system of checks and balances. The Office of Management and Budget memo issued under his authority—and rescinded two days later—declaring a “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs”; his discharge of National Labor Relations Board member Gwynne Wilcox, and his purge of inspectors general not only violate explicit and binding statutory law. They all aim to undermine Congress’s constitutional priority in establishing domestic policy and regulating the execution of the law.
As David Super, the Georgetown Law professor, has painstakingly explained, Trump’s suspension of a broad swath of federal financial assistance was a brazen violation of the Impoundment Control Act. But it is much more. The suspension was a direct assault on Congress’s legislative powers, including the power of the purse. The memo’s signatory, acting OMB Director Matthew J. Vaeth, wrote: “Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.” This is quite simply getting our Constitutional system backward. The law sets limits to presidential discretion. When Congress makes law—including the appropriation of funds that the executive is compelled to spend and the specification of limited conditions under which presidents may defer spending—the executive branch’s duty is to faithfully execute those laws. The president does not get to unilaterally bar federal funding that supports “Marxist equity, transgenderism, and green new deal social engineering policies,” even assuming that any of that is more meaningful than Project 2025 gobbledygook in the first place.
Trump’s firing of NLRB member Wilcox is intended to nudge the executive-indulgent Supreme Court under Chief Justice John Roberts to complete its subversion of congressional power to create independent agencies. Even under the Supreme Court when it was led by Chief Justice William Rehnquist, it had been conventional constitutional understanding—undergirded by the unanimous 1935 Humphrey’s Executor decision—that Congress was entitled to protect executive administrators from at-will discharge, so long as presidents could, directly or indirectly, effect the removal of any administrator who was violating the law. The Court reaffirmed that position in its 1988 Morrison v. Olson decision, which upheld, by a 7-1 vote, the independent counsel provisions of the post-Watergate Ethics in Government Act. The Roberts Court, however—enamored of the constitutionally dubious “unitary executive theory”—has been working towards the position that presidents can fire at will all subordinate officers of the United States. In the 2020 Seila Law case, a 5-4 Roberts opinion re-cast Humphrey’s Executor and Morrison as “two exceptions to the President’s unrestricted removal power.” They allowed Congress to protect the tenure, respectively, only of “expert agencies led by a group of principal officers” and “certain inferior officers with narrowly defined duties.” Trump no doubt wants the Supreme Court to overturn those exceptions so that he can fire anyone who defies “the will of the people” that he believes he embodies.
In a sense, the mass firings of inspectors general without fulfilling either the statutory requirement of notice to Congress or the statutory requirement of reason-giving is even worse. The Inspector General Act of 1978 permits presidents to remove inspectors general. It simply imposes statutory speed bumps to disincentivize unjustified removals of officials charged explicitly with promoting government economy, efficiency, and effectiveness, as well as preventing and detecting administrative fraud and abuse. Ignoring those statutory requirements thus challenges not only Congress’s authority to create independent administrators but also its authority to regulate, even modestly, how the White House and subordinate officers in the executive interact.
The groundwork for Trump’s assault on the Constitution has been laid by the fecklessness of the other two branches. Essential to the Madisonian system is that each branch of government would stand up for its constitutional authorities in constructive tension among the three branches. “Ambition,” Madison wrote in Federalist 51, “must be made to counteract ambition.” In our hyperpolarized political moment, however, Congress has been all but supine in the face of presidential overreach when the party in charge of Congress is also the president’s party. Congress’s failure to bar Trump from office after he incited an insurrection against democratic government embodied that irresponsibility.
The Roberts Court, for its part, has played an oversized role in upholding an unduly aggrandized, constitutionally mythical theory of “executive power.” Harvard law professor Jack Goldsmith has recently (and not entirely unsympathetically) laid out the cornerstone propositions of unitary executive theory. Its foundational premise is that the Constitution’s vesting of executive power in the President gives the president “all” executive power, which—according to the current Court—is “conclusive and preclusive.” That is, Congress may not regulate its exercise. Even the most cursory reading of the Constitution falsifies this premise. The vesting of executive power does not use the word “all”; indeed, some executive power, such as the power of appointment, is explicitly shared with the Senate. Congress, on the other hand, gets the word “all” used repeatedly. It is empowered “to make all laws which shall be necessary and proper for carrying into execution” Congress’s specific authorities “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” The misreading of the Constitution by right-wing judges and mostly conservative academics helped create a glide path to our current perilous moment.
Trump’s efforts to upend checks and balances are, of course, not new. In his first administration, Trump was eager to subvert Congress’s impeachment power and its general authority to oversee and investigate the executive branch. His method was simple: He just refused to provide information. The White House refused in 2019 to cooperate with the investigation into Trump’s apparent attempt to coerce Ukraine into conducting a criminal investigation targeting Joe and Hunter Biden. At his second impeachment trial, Trump declined to testify in defense of his actions on January 6, 2020. But these were but the tip of the iceberg. Co-Equal, a nonprofit formed to defend congressional oversight power, compiled a report documenting dozens of tactics the Trump administration used to impede over 100 congressional investigations and inquiries.
It is hard to overstate the dangers of the constitutional crisis that Trump is trying to provoke. He is pushing back against Congress’s key levers as a co-equal branch: not only its investigative powers but also its primacy in setting national policy, its authority to structure the offices of administration and to regulate their operation, and its power of the purse—whether to limit federal spending or to command it.
Until now, our system of checks and balances, however precarious, rested on the customary willingness of each branch of government not to push its powers to their furthest textually plausible limit. Americans benefited from the resulting realm of constitutional ambiguity. Ambiguity helped to sustain what Justice Robert Jackson once called “a zone of twilight in which [the President] and Congress may have concurrent authority, or in which its distribution is uncertain.” Respect for that ambiguity at both ends of Pennsylvania Avenue helped foster a measure of self-restraint, as well as interbranch dialogue and negotiation, often with salutary results. Trump prefers to eliminate any blurry lines around executive authority and arrogate all power to himself. The idea of self-restraint must seem to him an oxymoron.
Considering these circumstances, is it an abuse of language to say that Trump’s object is “tyranny?” Don’t ask me. Ask Madison.
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