With its decision Monday in Trump v. Slaughter, the Supreme Court’s conservative supermajority has fully embraced the unitary executive theory — the view, popular among Donald Trump’s loyalists, that presidents have unrestrained authority over the executive branch. With this decision, the court has fundamentally reshaped the federal government and handed us an executive branch on steroids.
Combine the Supreme Court’s radicalism in this case with the revanchist, overreaching second presidency of Mr. Trump, and the separation of powers as we have known it has been all but laid to waste.
In Slaughter, the court handed the president the power to fire at will the heads of independent agencies like the Federal Trade Commission. The decision formally interred the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, which for nearly a century has been understood to permit Congress to create and empower federal agencies that operate with a degree of independence from the president and the political winds. In his majority opinion, Chief Justice John Roberts wrote that it is only when the president has complete control over those who assist in executing the law — including, importantly, the ability to fire them at will — that the Constitution can “live up to James Iredell’s boast that ‘the president’ would ‘be personally responsible for everything.’”
“The result,” Justice Sonia Sotomayor explained in dissent, “is a president who emerges with far greater power than ever before.” Under the up-is-down logic of the majority opinion, this concentration of power in one person is the best way to “produce the ‘vigor and activity’ necessary to preserve the Constitution’s separation of powers.”
Together, President Trump and the Supreme Court have thrown the separation of powers badly out of alignment. When Mr. Trump leaves office, it will fall to the legislative branch to rebalance government power to better align with the Constitution’s design. The model for that effort takes us back to another president who threatened the rule of law, Richard Nixon. Despite Vice President JD Vance’s recent efforts at revisionist history, the Watergate abuses were serious — and so were Congress’s responses.
Then as now, the president challenged Congress’s power of the purse. The Impoundment Control Act of 1974 was prompted by Nixon’s various refusals to spend money on programs Congress had opted to fund. Mr. Trump has similarly asserted a broad presidential authority to refuse to spend even appropriated funds.
Then as now, Congress faced a president’s abuse of emergency powers. The National Emergencies Act of 1976 sought to place limits on — and subject to congressional oversight — presidential assertions of emergency authority. Mr. Trump has made aggressive use of emergency powers for initiatives from border wall construction to tariffs.
Then as now, rank corruption and abuse of authority were on display in the White House. The Ethics in Government Act of 1978 responded by creating a special prosecutor role with the authority to investigate allegations of wrongdoing by high-level officials and by imposing new ethics and conflict-of-interest rules. That year, Congress also enacted the Inspector General Act, creating internal watchdogs with a mandate to uncover waste, fraud, misconduct and abuse inside the federal government. In addition, Congress passed the Presidential Records Act to make clear that the records of the presidency belong to the American people, not any particular White House occupant. Shrugging off these laws, the Trump administration has indulged in naked self-dealing that goes well beyond anything Nixon dreamed of.
Then as now, Congress faced presidential overreach in the area of foreign policy. The War Powers Resolution was passed in 1973 over Nixon’s veto. Mr. Trump prosecuted his war against Iran in defiance of that law.
But there is an important difference. This time, in addition to recalibrating the balance of power between itself and the president, Congress must also pursue Supreme Court reform — both to restore the proper limits on the court’s power and to prevent the court from blocking the badly needed reforms to the presidency. Consider what the Supreme Court has done, over time, either directly or indirectly, to some of the Watergate-era reforms adopted by Congress.
In its 1988 decision in Morrison v. Olson, the court actually upheld the independent counsel law, over an influential lone dissent by Justice Antonin Scalia. The court’s recent decisions on presidential power, culminating in Slaughter, have turned Morrison into a dead letter. Despite statutory requirements of congressional notification and reason-giving, Mr. Trump has summarily fired many of the inspectors general in the federal government.
The National Emergencies Act remains on the books, but in a 1983 decision the Supreme Court essentially turned the law’s design on its head. The court converted the N.E.A. regime, in which presidents could declare federal emergencies but Congress had the power to end them, into one in which presidents can declare emergencies, and those emergencies stand unless the president agrees to end them (or unless Congress manages to override a presidential veto).
The Impoundment Control Act and the Presidential Records Act are technically still standing; but the administration has skirted the Impoundment Control Act and explicitly announced its refusal to comply with the Presidential Records Act, which it said in April it had concluded was unconstitutional, in that it “it aggrandizes the legislative branch at the expense of the constitutional independence and autonomy of the executive.” In both cases, it’s clear that the administration’s willingness to defy existing law turns at least in part on its confidence that if its arguments are tested in the Supreme Court, they are very likely to prevail.
When Mr. Trump’s second term ends, Congress should have at the ready a list of reforms intended to rein in an out-of-control executive branch, and to reassert legislative primacy where this president has usurped congressional power. Given how congressional Republicans have coddled Mr. Trump, this probably can’t succeed without Democratic control of both the House and Senate, and Supreme Court reform.
What could that court reform look like? It could mean provisions stripping the Supreme Court of the power to hear challenges to certain newly enacted laws, or legislating supermajority voting requirements so that only a showing of unanimity or close to it can justify invalidating certain laws. It could also include statutorily creating additional Supreme Court seats, then moving quickly to fill them with jurists who will not pursue the current court’s apparent goal of boundless power for both the president and itself.
To be clear, though, returning to Watergate-era norms — even with a reformed Supreme Court — won’t be enough. More robust and enforceable ethics laws will be needed that apply to the president and are backed by criminal penalties. In addition to legislating new limits and checks on presidential power, Congress should remove some of the obstacles to civil suits against, and perhaps even criminal prosecution of, government officials who have violated the law. Beyond these reforms, Congress must pass another round of voting rights legislation that will protect the conditions of meaningful participation in our democracy.
Pairing an agenda for responding to the pathologies displayed in this presidency with an agenda for Supreme Court reform will ensure that the limits of our political imagination and political will can be far broader than what the current six-justice majority will allow.
Kate Shaw is a contributing Opinion writer, a law professor at the University of Pennsylvania Carey Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.
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