Reconstructing the Executive Branch

This article was previously published as part of The Reconstruction Papers. The entire book is available in print and as a PDF.

In 1973, Arthur Schlesinger published The Imperial Presidency. The political historian decried the ever-expanding powers of the president in the context of Watergate and the Vietnam War, deeming them beyond the vision of the Constitution’s framers. In the concluding chapter, Schlesinger lamented that “Nixon’s presidency was not an aberration but a culmination” of America’s trend toward presidentialism.¹ Until Nixon, each president was, to a degree, constrained by a system of checks and balances “incorporated within his own breast,” accompanied by attention to public opinion.²

In other words, presidents have historically been constrained by politics and norms. The law—both constitutional and statutory—has surely played some role in curtailing presidential action. But it is unclear how much positive law restricts what the president can do. This raises a key question: If a president does not feel bound by norms, politics, or the law, what can stop him?

Donald Trump’s election to a second, non-consecutive term in 2024 has proved to be a severe test for American democracy and has thrown into sharp relief what Juan Linz warned of as the “perils of presidentialism.”³ As of the writing of this essay, Trump is a year and two months into his second term. In that time, he has attempted to amend the Constitution by executive order, impound appropriated funds in violation of federal law, deport Americans without due process of law, retaliate against American law firms and lawyers in violation of the First and Sixth Amendments, police student dissent within American universities, fire federal officials in violation of federal law, and, most recently, wage war against Iran without a congressional declaration of war.

This non-exhaustive list of transgressions suggests that neither norms nor the law can fully keep an “unbound” president like Trump in check.⁴ The regularity of the administration’s lawbreaking and norm-violating actions further suggests that they are unlikely to end. This raises another question: Who or what can stop the Trump administration?

The answer to that question is unclear. If there is a silver lining, it is the opportunity to assess the features of the executive branch that have laid the foundations for the Trump presidency. In this essay, I detail some—but not all—of the unconstitutional, unlawful, or otherwise norm-violating actions of this administration. In doing so, I discuss some of the relevant historical, political, and legal developments that have led to the current moment. I then recommend some reforms that might be helpful in preventing authoritarianism from becoming entrenched in our governing institutions.

Trump 2.0

On January 20, 2025, Donald Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship.”⁵ The order purports to deprive certain children of citizenship if they are born to a non-citizen mother who is either (1) in the United States unlawfully or (2) in the United States temporarily and the father is not a citizen of the United States. The Fourteenth Amendment to the Constitution, ratified in 1868, states that “all citizens, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”⁶

Immediately, a coalition of plaintiffs challenged the executive order in federal court, and the courts blocked the Trump administration from implementing it. After the Supreme Court held that federal courts are prohibited from using “nationwide injunctions” to block the executive branch, plaintiffs turned to class-action suits; the order remains blocked. The racism undergirding the executive order notwithstanding, this invites an important question: Is the president able to amend the Constitution by executive order?

Since he launched his first campaign in the run-up to the 2016 election, Trump’s signature issue has been immigration. Fueled by racism and xenophobia, his second-term immigration policy has resulted in stark deprivation of the right to due process of law. The rise of Immigration and Customs Enforcement as a strong-arm of the federal government has brought some Americans’ worst fears to light. The brutality of ICE—at the direction of the president and his closest advisers—raises fundamental concerns bearing on executive power.

Turning to economic policy, Trump’s trademark tool has been the tariff. Relying on the International Emergency Economic Powers Act (IEEPA), he unilaterally imposed tariffs against some of the United States’ closest international allies, such as Mexico and Canada, as well as higher tariffs on many more countries. The Supreme Court struck the tariffs down, but this saga also raises fundamental concerns about both executive and congressional power.⁷

Finally, the Trump administration unilaterally initiated a war with Iran. As this essay is being written, the United States is reportedly slouching toward deploying “boots on the ground” in the Middle Eastern country. This is to say nothing of the air strikes that have rained down on Iran since February 2026. It is unclear what the administration’s goals are. At some points, it is full-fledged regime change, and at others, the goals seem to be smaller in scope. The bottom line is that the events in Iran are under way without a declaration of war from Congress. This is not a unique development. Congress has not issued a formal declaration of war since World War II, but the Iran situation throws a spotlight on the war-making provisions of the Constitution.

This brief recounting of events during the first year of Trump 2.0 lays bare the flaws of the executive branch. The more difficult question is: What can be done? In the balance of this essay, I grapple with potential reforms to the post-Trump executive branch. The recommendations are not exhaustive, and in some cases, they are politically precarious or improbable. But the severe flaws in the executive branch are not the product of the Trump presidency. Rather, they long predated his rise to political prominence. The goal, then, is to spur conversations about how best to approach the reconstruction that should—must—follow Trump’s final term.

Congress must lead the way

Today, much of the president’s power comes from Congress rather than the Constitution itself. Throughout American history, Congress has acted as a check on executive power. To be sure, it has contributed to the growth of such power as well. But any rebinding of the unbound executive will require Congress to assert itself.

In the wake of the Vietnam War and Watergate, Congress instituted several statutory reforms that were intended to prevent an overly ambitious president from transgressing legal boundaries. This “resurgence” of congressional power included the Impoundment Control Act of 1974, the Ethics in Government Act of 1978, and the War Powers Resolution of 1973.⁸ These statutory reforms were bound together by a single theme: restoring the balance of power between Article I and Article II of the Constitution.

The legislative veto

Either the Supreme Court should overrule its decision in INS v. Chadha (1983) or Congress should expand the Court and strip it of its jurisdiction to hear constitutional challenges to the legislative veto. Congress could also strip jurisdiction to hear separation-of-powers disputes, but short of that, the demise of Chadha would be an adequate first step. The Court has been increasingly hostile to Congress in the past decade, but it has also kneecapped key tools in the congressional toolbox.

In 1983, the Supreme Court struck down the legislative veto.⁹ At the time, the legislative veto had become a key mechanism through which Congress could check the executive branch. This veto could operate in several ways, but essentially, it allowed Congress to approve or disapprove of presidential use of delegated authority.¹⁰ As Josh Chafetz has noted, legislative vetoes pervaded the post-Watergate reform statutes, but they were prominent in other statutory schemes that occurred long before Nixon’s presidency.¹¹

The death of the legislative veto, combined with several other external factors, has resulted in a Congress unable to effectively push back against an overweening leader. The rise of a personalistic president like Trump has reinforced the dangers of a ballooned executive coupled with a relatively ineffective legislature.

A legislative-veto-like tool could help rein in the presidency. Chafetz and others have suggested sunset provisions or hard cutoffs for delegations of policymaking authority from Congress to the executive branch. Immediate reactions to this suggestion might be (1) Chadha says that the legislative veto is unconstitutional and (2) the Roberts Court is significantly more conservative and formalist than the Burger Court.

First, the structural deficiencies of the executive branch existed long before Trump. He is just the first president willing to so profoundly flout both political norms and the law. In an era of stark partisan polarization, it will take inventive political craftsmanship to restore Article II to its proper constitutional place. What a “legislative veto 2.0” would look like in detail is beyond the scope of this essay, but those citizens who believe in democracy must be willing to think creatively about plausible solutions.

Second, the reader must note that it is Congress, not the president or, especially, the Supreme Court, that must lead the way. Presidents are loath to relinquish power because, among other things, they feel political pressure to accomplish what they promised. It’s unlikely the vast statutory (and, to a lesser extent, constitutional) powers that have accumulated in the office can be completely wrested away.

Historically, the Supreme Court has been willing to accommodate presidential power grabs. But the Roberts Court has essentially interpreted Article II as a way to enshrine an elected monarch. It has read the unitary executive theory into the Constitution in a series of cases, foremost among them Seila Law LLC v. Consumer Financial Protection Bureau (2020) and Trump v. United States (2024).¹² The Court will surely do more damage in the future, which reinforces the necessity for liberals and progressives to abandon what the historian Laura Kalman has called legal liberalism, the idea that courts can produce social and political change.¹³ The Roberts Court is fairly open in its hostility toward Congress, having reified the perception of the legislature as a “broken branch.”¹⁴ According to the Court, Congress is too encumbered by partisanship and petty disputes to exercise its constitutional duties.¹⁵

Congress should insulate Cabinet-level agencies from presidential influence

Admittedly, this is a legally challenging recommendation. Indeed, the Supreme Court seems prepared to hold that all independent agencies exercising executive power must, as a constitutional matter, be subject to “control” by the president. For the sake of brevity, I will focus on the independence of the Department of Justice.

Bob Bauer and Jack Goldsmith diagnose the threat Trump posed to the independence of the DOJ in their important book After Trump,¹⁶ published in the wake of Trump 1.0. The authors discuss the blurred line between independent, political prosecutorial decisions and partisan ones. While their diagnosis was startling in 2020, the problems that they point out only became more profound in the first year of Trump 2.0.

As former attorney general Pam Bondi made abundantly clear, the DOJ is now little more than Trump’s partisan hand. The attorney general exercises breathtaking authority on behalf of the United States. For most of American history, a combination of norms and congressional oversight meant the DOJ remained relatively independent of partisan influence by the president. The relationship between Bondi and Trump showed that neither norms nor congressional oversight were sufficient to maintain that separation.

There is likely no way to fully guarantee the independence of the DOJ, but Congress could erect significant hurdles to make it politically costly for the president to exert partisan influence over the enforcement of federal law. As a matter of constitutional text, I believe that Congress could simply make the DOJ into an independent agency, complete with for-cause removal and/or tenure protections for the attorney general.¹⁷ The text of the Constitution says nothing about the president’s power to remove executive-branch officials. On the contrary, the document gives Congress the power to create offices “by law” and implied powers to structure the government.¹⁸ The framers of the Constitution did not envision the judiciary as the separation-of-powers police. Rather, they believed that the complex set of institutional arrangements created by the Constitution would allow ambition to counteract ambition.¹⁹

Short of making the DOJ an independent agency through removal limitations and tenure protections, Congress could utilize its “anti-removal power” to impose costs on Trump each time he fires an official directly.²⁰ For example, it could require the president, in writing, to provide it with reasons and justifications for firing an official. It could also, by statute, require hearings whenever the attorney general is fired by the president.²¹

This is a legal reform. Legal reforms are not guarantees that actual reform will happen, but they can provide mechanisms for holding actors accountable for abuses of power. The relationship between Trump and Bondi was problematic precisely because she seemed willing to do his bidding, whether that meant investigating “woke” universities or punishing law firms that oppose the administration. In a fully functioning Congress, Bondi—along with many other officials—would have never been confirmed by the Senate. More stringent confirmation and removal processes would, at the very least, make it more difficult for presidents to exert top-down control over the executive branch.

Conclusion

There is no “easy fix” to reform our system of constitutional government. Indeed, we should be skeptical of those who—like Trump—claim to have a single solution. Many of the flaws in the American government have roots that are much deeper than our institutions themselves. To name a few, general dissatisfaction with government, economic anxieties, and unaddressed racism, sexism, and xenophobia can combine to produce authoritarian figures. Trump is one such figure. But despite the lack of a silver bullet, Americans can be creative in thinking of smaller solutions to prevent the types of abuse that we witnessed in the first quarter of Trump’s second term. If we want to reconstruct American government, we must start somewhere.

1. Arthur Schlesinger, The Imperial Presidency (Boston: Houghton Mifflin, 1973), 417.
2. Ibid., 418.
3. Juan J. Linz, “The Perils of Presidentialism,” Journal of Democracy, Volume 1 (1990): 51–69.
4. Eric A. Posner and Adrian Vermeule, The Executive Unbound (New York: Oxford University Press, 2011).
5. Donald J. Trump, Exec. Order No. 14160, “Protecting the Meaning and Value of American Citizenship,” 90 Fed. Reg. 8449 (Jan. 20, 2025).
6. U.S. Const. amend. XIV, § 1.
7. Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026).
8. See, for example, James L. Sundquist, The Decline and Resurgence of Congress (Washington, DC: Brookings, 1981).
9. INS v. Chadha, 462 U.S. 919 (1983).
10. Josh Chafetz, “The Chadha Presidency,” Georgetown Law Journal, Volume 115 (forthcoming 2026): 1–53.
11. Ibid.
12. For extended discussion of these two decisions, see for example, Patrick J. Sobkowski, “Article II as Suicide Pact,” Liberal Currents, April 30, 2025.
13. Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996).
14. Thomas E. Mann and Norman J. Ornstein, The Broken Branch (New York: Oxford University Press, 2006).
15. Beau J. Baumann, “Americana Administrative Law,” Georgetown Law Journal, Volume 111 (2023): 465–527.
16. Bob Bauer and Jack Goldsmith, After Trump: Reconstructing the Presidency (Washington, DC: Lawfare Press, 2020).
17. I should point out that Supreme Court precedent cuts strongly against this argument. But the Court does not have the final word on these issues, and Congress could achieve some progress in aggressively using its legislative authority to curb the executive branch.
18. U.S. Const. art. I, § 8, cl. 18.
19. Federalist No. 51 (James Madison) (Jacob E. Cooke, ed.) (Middletown: Wesleyan University Press, 1961).
20. Aaron L. Nielson and Christopher J. Walker, “Congress’s Anti-Removal Power,” Vanderbilt Law Review, Volume 76 (2023): 1-81.
21. Ibid., 53.