Donald Trump’s wrecking-ball second term has revealed the full latent power of the presidency. His administration has done this most clearly in its comprehensive elimination of legal and norm-based checks inside the executive branch, its systematic disrespect of judicial process, its extortionate abuse of government power to crush foes and its destructive rhetoric and nastiness.
Yet it is important to recognize that many of Mr. Trump’s efforts to expand the powers of the office build substantially on the excesses of recent presidencies. The overall pattern of presidential action over the past few decades reveals an escalation of power grabs that put the country on a terrible course even before Mr. Trump took office again.
The presidency needs reform, and Americans must consider ways — however implausible they may seem in the context of today’s politics — to get there.
Expansionist presidential acts go all the way back to George Washington, who invited charges of monarchism with his use of the Constitution’s broad yet undefined “executive Power.” From there the presidency, with its loose design, grew and grew, with major surges during the Civil War and New Deal era. That trend continued through the 20th century, aided by the rise of mass communication, substantial delegations of power from Congress and an approving Supreme Court.
Mr. Trump’s radical second presidency is, to an underappreciated extent, operating from a playbook devised by his modern predecessors.
His use of emergency powers to impose broad tariffs is similar to a move made in 1971 by President Richard Nixon. His claims of untouchable national security authority echo arguments made after the Sept. 11 attacks by the George W. Bush administration, in which I served.
Presidents for decades have issued pardons as political or personal favors or to avoid personal legal jeopardy. Mr. Trump took this practice to new extremes in his first term, and then President Joe Biden pre-emptively pardoned his son and family as well as members of his administration and Congress, in a similar pattern. Mr. Trump in his second term has already issued many self-serving pardons.
Mr. Trump’s executive-order program is an heir of the strategy used by President Barack Obama for large-scale and sometimes legally dubious policy initiatives, including some (involving immigration) where Mr. Obama had earlier admitted he lacked authority to act. Mr. Biden also confessed a lack of power but then acted unilaterally in seeking to forgive student loans.
Mr. Trump has disregarded statutory restrictions to fire officials in independent agencies including the Federal Trade Commission, the National Labor Relations Board and the Merit Systems Protection Board. But in 2021, Mr. Biden extended the Supreme Court’s unitary executive case law to fire the statutorily protected commissioner of the Social Security Administration. Mr. Biden was “the first unitary executive,” noted the legal writer Mark Joseph Stern in 2021.
Mr. Biden also purged the executive branch of Trump holdover officials who were not protected by statute, including members of arts and honorary institutions, the Administrative Conference of the United States and the Department of Homeland Security Advisory Council. The Biden administration’s defense of these firings resulted in judicial precedents that Mr. Trump is now wielding to clean house on a broader scale.
The Trump administration has also built on past presidencies in not enforcing federal law — for example, in letting TikTok live on despite a congressional ban. This practice finds its modern roots in the Obama administration, which asserted broad nonenforcement discretion in high-profile cases involving immigration, marijuana and Obamacare, in effect changing the meaning of those laws.
Something similar has happened with spending. As one recent paper noted, “The past several presidents have all taken significant unilateral actions intruding on Congress’s control over federal spending.” The Trump 2.0 version greatly enlarges this unilateralist pattern.
The same goes for government reshaping of educational institutions. The Obama administration’s legally dubious threats to yank federal funds from universities induced major change to their rules on sexual assault and harassment. The Trump administration’s attacks on universities for antisemitism and ideological capture rely on the same underlying logic — though the attacks are heavier-handed and legally more dubious in prejudging cases and freezing funds without process.
Justified or not, it was Mr. Biden’s administration, not Mr. Trump’s, that prosecuted political opponents — a deeply controversial step. While federal prosecutions by the special counsel Jack Smith were legally serious, they were understandably perceived by Mr. Trump and supporters as part of a broader constellation of aggressive partisan-aligned actions at the state and local level to exploit the legal system to keep Mr. Trump off the 2024 ballot.
Republicans rightly protested many of the Democratic administration actions that are now the precedents on which Mr. Trump relies. They also complained, with justification, about the politicization and weaponization of the intelligence community; the political use of the I.R.S.; executive branch threats to private speech and to exclude and delegitimize hostile media; attacks on federal courts; and extravagant use of emergency powers.
Mr. Trump is now doing all of these things on a more sweeping scale — often with the applause of people who once opposed the tactics.
The comparisons between Mr. Trump and his predecessors, and between past and present Republican views on executive power, are neither gotcha nor whataboutism. They are instead a window into the downward spiral of constraints on executive power.
Small departures from traditional limits that seem justified for short-term gains serve as a road map for future escalations. One presidency’s novel step becomes a precedent for ratcheting up a bit more in the next. Both sides of the political aisle object to the ratchets when out of power but rely on them to push further when they hold the presidential reins.
The architects of Trump 2.0 studied carefully and learned from the innovations of Mr. Trump’s predecessors. Absent an upending of the historical pattern, we should expect the next Democratic administration to extend many of those innovations — including possibly the deployment of government muscle against rival power centers, which Republicans would rue.
The back-and-forth escalating presidential power grabs have been awful for the country. They have led to ever-more-extreme presidential policies, ever-widening policy lurches across different administrations and ever-greater politicization of the Justice Department and weaponization of the government more generally.
They have also damaged the Supreme Court, which must referee the increasingly numerous and extreme assertions of presidential power, and which does not always resolve these cases wisely and often cannot do so in a politically uncontroversial way.
There is a clear case for imposing substantial limitations on the presidency. This effort must take us back not to the day before Mr. Trump’s second inauguration, but rather back to when Congress and not just the president played a vital role in domestic policy, and when law and norms checked presidents from grabbing everything they could in the short run.
But how we get there is frankly hard to fathom.
One path runs through the Supreme Court. Some of its recent doctrinal innovations — narrowing judicial deference to federal agencies and requiring congressional clarity for “major questions” of administration policy — are intended to hem in presidential actions not truly authorized by Congress. Many Democrats denounced these doctrines when Mr. Biden was president but are very happily invoking them now. There is a lesson there.
Mr. Trump’s aggressive assertions of executive power on appropriations, agency reorganization, deportation and the Civil Service are opportunities for the court to clarify and constrain that power. The court did just that when President Harry Truman sought to seize steel mills during the Korean War and when President Bush asserted too much unilateral war power after the Sept. 11 attacks. The court must also rethink some of its recent bows to the unitary executive in light of Mr. Trump’s demonstration of the damage that a full-blown unitary executive can do.
A more important but much steeper path runs through Congress. It is hard to overstate how much the decline of a responsible Congress is the cause of presidencies run amok. There are many good reforms on the table to reorganize Congress and campaign financing in ways that induce the legislative branch to play a more serious role in policymaking and oversight.
The hard part — the fundamental hurdle — is getting a dysfunctional Congress to adopt them. Even during the Biden years — after Mr. Trump’s abuse-filled first term and with Democrats in control — Congress failed to reform the presidency.
Yet American history has been marked by periods of fundamental reform that were once unthinkable. This happened in the Progressive Era and the New Deal. And the consequential 1970s post-Vietnam, post-Watergate reforms of the presidency were unfathomable just a few years before they occurred. A reckoning after Trump 2.0 — or after the retaliation it provokes — could mirror the 1970s moment and offer a chance to constrain the presidency and to restore congressional primacy.
But neither judicial review nor ordinary legal reform alone is sufficient to curb what the presidency has become in recent decades. We must consider the possibility of a constitutional amendment to define and constrain the executive branch.
The bar here is extremely high and the task delicate. Major possibilities for constitutional reform include narrowing the runaway pardon power; permitting Congress to block untoward executive actions without having to pass a new law, a once-accepted practice the Supreme Court invalidated in 1983; and confining Justice Department politicization in all its guises.
Every type of presidential reform, and all meaningful constraints on the presidency, ultimately depend on the election of a leader who, as Arthur Schlesinger Jr. wrote in “The Imperial Presidency,” has “checks and balances incorporated within his own breast.”
That in turn depends on something that now seems impossible: a candidate who, like Jimmy Carter in 1976, runs on a platform of moderating presidential power; an electorate capable of overcoming divisiveness to elect such a leader; and a president who follows through in office.
Jack Goldsmith (@jacklgoldsmith) is a law professor at Harvard, a nonresident senior fellow at the American Enterprise Institute and a former assistant attorney general. He is an author, with Bob Bauer, of “After Trump: Reconstructing the Presidency” and the newsletter Executive Functions.
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