The lawsuit filed last week to halt the Trump administration’s dismantling of the U.S. Agency for International Development stands on a bedrock constitutional principle: “Congress, not the President or the U.S. Constitution, creates and organizes the offices and departments” of the government—as a 2017 Heritage Foundation report accurately stated.
Good-faith arguments exist both for and against America having an independent USAID, or—to name another Donald Trump target—a stand-alone federal Department of Education. Over the decades, Congress has changed its mind about both. Constitutionally, however, that’s the point: The decision is up to Congress. Unilateral moves to dismantle USAID, to mothball the Consumer Financial Protection Bureau, or, if Trump’s advisers have their way, to disassemble the Education Department are beyond the president’s constitutional authority.
Since the Kennedy administration, foreign-assistance functions have been lodged in different agency homes. With authority granted him by the Foreign Assistance Act of 1961, President John F. Kennedy established USAID as a division of the State Department. Using powers delegated to him by statutes enacted in 1979, President Jimmy Carter moved USAID’s functions to the United States International Development Cooperation Agency. In 1998, Congress gave President Bill Clinton authority to either return USAID to the State Department or allow it to become an independent establishment within the executive branch; Clinton did the latter. Although presidential judgment thus informed the shape of USAID at every stage of its evolution, everything that presidents pre-Trump did with regard to the structure of USAID or the allocation of its functions was done pursuant to laws that Congress had enacted. No president asserted authority independent of Congress to create, reshape, or eliminate USAID.
This history reflects the Framers’ decision to give Congress, not the president, the authority to generate the executive-organization chart. The Constitution’s executive-branch charter, Article II, envisions what we now call the federal bureaucracy. The president is given explicit authority 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.” But Article II says nothing else about those “departments.” Instead, Article I of the Constitution, the charter for the legislative branch, assigns to Congress the responsibility 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 president’s job is to faithfully execute the law, but law—including law that establishes and structures executive offices and agencies—gets made by Congress.
Since the very first Congress, the legislative branch has jealously guarded its power over organization. When the first House bill creating the Department of Foreign Affairs was introduced in the Senate, Senator William Maclay of Pennsylvania suggested that the organization of the executive branch might be left to the president, as the holder of executive power. His scheme would have given to the president the power of a British monarch to create offices. The Senate rejected his position, and the First Congress enacted a round of statutes organizing the new departments—Foreign Affairs, War, and Treasury. The statutory duties of the secretaries heading Foreign Affairs and War were largely to carry out presidential instructions; Congress recognized that Article II envisioned significant discretionary roles in foreign and military affairs for the president. The Treasury, however, was organized in detail. Not only did Congress assign the Treasury Secretary a significant number of specific legal duties, but it also created additional offices within the department—all requiring Senate advice and consent. These additional offices, as explained by the administrative-law scholar Jerry L. Mashaw, “were meant to provide checks on the Secretary and each other in the crucial matter of safeguarding the integrity of the fiscal and monetary affairs of the nation.” Congress went on to create a variety of other agencies, including the Mint, the Post Office, a Customs Service, and a national bank, tailoring the structure of each according to its sense of how best to fit structure to mission. No one doubted that this was Congress’s prerogative to decide.
Supreme Court jurisprudence recognized Congress’s role. In Myers v. United States, the 1926 Supreme Court decision most protective of broad presidential power over administration, Chief Justice (and former president) William Howard Taft acknowledged: “To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed.” This proposition has never been open to serious question.
Congress has recognized, of course, that presidents may have valuable ideas regarding administrative organization. Beginning in 1939, Congress enacted a series of so-called Reorganization Acts, which gave presidents significant (but not unlimited) discretion to create, abolish, or restructure administrative agencies, subject to an important caveat. Presidential reorganization plans were subject to a “legislative veto”—that is, a resolution disapproving the plan enacted by both Houses of Congress, which could keep it from going into effect. This would be a concurrent resolution of the House and the Senate that the president could not veto and did not have to sign in order to make it binding. Through the threat of legislative vetoes, Congress kept control over what got created, abolished, or restructured.
In 1983, however, the Supreme Court held that legislative vetoes were an unconstitutional form of legislation. As a result, Congress took away presidential authority to implement reorganizations unilaterally. If presidential reorganization plans could not easily be blocked, Congress would no longer authorize them. Since 1984, presidents have been allowed only to propose reorganizations, which Congress could enact or reject through the ordinary legislative process. (A suggestion in 2023 by Vivek Ramaswamy that a 1977 Reorganization Act continues to empower presidents to abolish agencies despite the statutory changes Congress enacted in 1984 is an appallingly fanciful statutory interpretation.)
In light of this legal background, the question is why Trump thinks a president can legally disassemble agencies on his own—assuming, that is, that he cares if it is legal. The likely answer would involve an especially ambitious version of an Article II interpretation called the “unitary executive theory.” The baseline premise of the unitary executive theory is that Article II guarantees presidents complete removal authority over every subordinate member of the executive branch. Bolder versions contend that he or she can also directly command how every function of the executive branch be performed—or even perform them personally.
The Supreme Court has never fully embraced the unitary executive theory. However, a broad reading of the Myers decision mentioned earlier—a reading the Court unanimously rejected seven years later—would invalidate any attempt by Congress to create independent administrators protected from presidential at-will removal. The Roberts Court has gone nearly all in on the broad reading of Myers, treating Humphrey’s Executor v. U.S., the 1935 opinion upholding the Federal Trade Commission, as a mere exception to Myers. (In the intervening decades, the Supreme Court had repeatedly reaffirmed Humphrey’s Executor as the controlling authority, most famously in its 1988 decision upholding the constitutionality of post-Watergate independent counsels.) As a result, the constitutionality of agency structures such as the Federal Trade Commission and the National Labor Relations Board now hangs by a thread; the Court could conceivably uphold the firing of the NLRB member Gwynne Wilcox.
Of course, even a presidential power to fire an individual agency head would not necessarily translate into authority to shut down entire government departments. However, in its 2024 opinion granting former presidents all-but-blanket immunity from prosecution for crimes committed while in office, the Court seemed to signal something far more ominous. The majority described the president’s authority to supervise the executive branch as a power that Congress may not touch—a conclusion that flies in the face of constitutional text. As explained by the Harvard law professor Jack Goldsmith, who had headed the Justice Department’s Office of Legal Counsel during part of George W. Bush’s second administration: “The ruling about the exclusivity of presidential enforcement discretion, especially vis-à-vis Congress, is entirely novel … And it has potentially massive implications, depending on its scope.” What the opinion now apparently implies to Trump is that the president, constitutionally speaking, is the entirety of the executive branch, and he can configure it however he wants.
That said, Trump’s record of legal success in the Supreme Court is a mixed one. But he presumably thinks it a good bet either that the legal challenges to his scorched-earth tactics will be too slow to stop him or that, if they reach the Supreme Court, that body’s right-wing supermajority will continue to improvise on behalf of de facto executive supremacy. Eyeing the latter possibility, the newly confirmed Office of Management and Budget Director Russell Vought has affirmed the administration’s position that Congress lacks authority to force the spending of appropriated funds—a position the Supreme Court has never endorsed, and which is constitutionally unfounded. But a majority that would proceed as vigorously and creatively as it did to protect Trump from prosecution might be willing to improvise some more.
A government agency’s structure and location are not just abstract; they matter to the work the agency does on the ground. When Congress extracted a Department of Education from what was formerly the Department of Health, Education, and Welfare, it was to give federal support for education greater emphasis. When Congress moved the Coast Guard from Transportation to Homeland Security, it was presumably to prioritize the Coast Guard’s role in security rather than safety. The reason proposals to merge the Bureau of Land Management and the U.S. Forest Service have always failed is that the organizational DNA of the Interior Department, which houses BLM, favors conservation, whereas the reflexive policy mood of the Agriculture Department, which owns the Forest Service, is pro-development.
Perhaps the most worrying development is that the administration’s commitment to obeying court orders may not prove any more reliable than its dedication to following statutes. On Sunday, with a soupçon of Trumpian deniability in his precise wording, Vice President J. D. Vance posted on X: “Judges aren’t allowed to control the executive’s legitimate power.” Taken literally, Vance’s statement is accurate; what it fails to acknowledge is that the judicial power includes authority to state just how far the executive’s legitimate power extends. In rejecting President Richard Nixon’s claim of entitlement to withhold the Watergate tapes, the Court held in a unanimous opinion: “Many decisions of this Court … have unequivocally reaffirmed the [1803] holding of Marbury v. Madison that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’” Should Trump ignore any court order to halt his demolition of the executive branch, he will have dismantled not just an agency, but the Constitution itself.
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