A Power Grab Is Not a Constitutional Theory

Lawyers love legal theories. President Trump’s unprecedented executive actions have reignited interest in theories about the U.S. Constitution, especially conservative ones. Is he working with an extreme conception of the unified executive theory, a strong version of “originalist” or even “post-originalist” legal reasoning, or will the “political question doctrine” dominate?

These debates are fascinating, but they strike me as pointless. Why? Because Trump’s supporters are not deploying them in good faith. Rather, these theories are being used as rhetorical maneuvers to dress up a power grab in theoretical garb.

I am sure of that for a simple reason: Trump’s backers invoke these theories only to defend Trump’s actions. When Biden used the powers of the Presidency – and perhaps overstretched them – Republicans regularly brought him to Court and celebrated each and every decision against his administration.

Not once did they argue that the Supreme Court erred because Biden, like every other President, should operate under the unified executive theory or any other legal construction that would grant the President massive powers.

Trump’s supporters use the theory only when it serves them. Of course, the same can be said, to some extent, of the Democrats. Some of their most celebrated presidents, notably Franklin D. Roosevelt, operated under extensive assumptions of presidential power – and were often stopped by the Supreme Court. The Trump administration, however, presents the most extreme case of such overreach.

When a party advances a theory only when it is useful to them, it is not a theory: it is a thinly veiled attempt to legitimize actions. A theory about the American Constitution (or any other) should apply regardless of who is in power. That is a fundamental premise of the rule of law that underlies the democratic state.

The fascination with such theories is not limited to lawyers. Many political scientists insist that “populists” are against checks and balances and favour raw forms of majoritarian rule. They take the momentary justifications of authoritarian actors at face value rather than examining their overall record.

Take the authoritarian Polish Law and Justice Party. When it won the elections in 2015, it made much about the will of the majority, invoking it to destroy Poland’s rule of law to appoint its own people to courts. When it lost the elections in 2023, however, it stopped talking about the majority will and invoked the rule of law and the judgements by courts it had captured to slow down the new government.

By the logic of the science of “populism”, the party seemingly transformed overnight into a “liberal” party in love with checks and balances. But that makes no sense. It was and remains an authoritarian party, happy to use any constitutional argument that serves its interests in a given context.

My plea is this: constitutional theories are interesting and important. You may not agree with the unified executive theory, originalism, or post-originalism, but they are not inherently absurd propositions. They are worth discussing – just as other approaches –  if they are genuinely intended to apply to any presidency.

However, it makes no sense to present any of them as the theory of the Republican Party – or of Donald Trump – because neither has ever thought it was a general theory for the American presidency, whoever the president may be. There is no good-faith theory underpinning the administration’s actions. It simply grabs power because it can – until someone stops it.

Which brings us to the role of the Supreme Court. When adjudicating cases involving overreach by the Trump administration, the Court should question the parties to the case about their good faith in advancing constitutional theories. This will not ultimately decide a case, but the credibility of the parties lends weight (or not) to their arguments.

Ultimately, the Supreme Court will apply the theories it deems correct.  In recent years, it has stopped many actions by the Biden administration and its administrative agencies, including vaccine mandates, student loan forgiveness, and clean energy policy. In doing so, it has relied on the “major questions doctrine,” arguing that an administration cannot apply rules or regulations of great “economic and political significance” without clear congressional authorization.

Many decisions by the Trump administration and its agencies will raise the same question: How much regulatory authority do they have in the absence of clear congressional legislation? And Trump will face the reverse question as well: Can the president act unilaterally, even if doing so violates rules clearly established by Congress? Are executive orders invalid if they violate such rules? And what about actions like the de facto dismantling of a congressionally mandated agency like USAID?

At its core, the upcoming legal battles will be about this: Will the Supreme Court continue its trend of ruling in favour of congressional authorization over executive fiat – sending a signal that the executive, whether Biden or Trump, cannot singlehandedly remake the country? Is winning 49.8% of the popular vote enough to entirely change the system, or is Congress the only place to generate majorities for deep change? (I recommend Ezra Klein’s discussion with Yuval Levin on this point).

The stakes could not be higher. Will the highly polarized Supreme Court apply its theories and precedents to the cases before it without fear or favour, or will it, too, succumb to immense political pressure?

And if the Supreme Court reins in Trump’s power grab, will the administration comply? Its public messaging on this is ambiguous. Analysts say that failure to comply would result in a full-blown “constitutional crisis” (The Economist). This language, however, is overly generous to the Trump administration. More accurately, if such a situation were to occur, it should be described as a coup – and the end of the US Constitution.