Trump's power grabs aren't unprecedented, but he is raising the stakes
What lies ahead?
The fact is that for decades presidents have actively expanded executive prerogatives, arguably inflicting damage not just to the institution of the presidency but also to the country along with it. Maybe no one is better qualified than Jack Goldsmith1 to develop that point, as he did here. His central thesis: many of the controversial actions President Trump has taken have precedents. As he put it: “Mr. Trump’s radical second presidency is, to an underappreciated extent, operating from a playbook devised by his modern predecessors.”
Presidents since the beginning of the Cold War, and especially George W. Bush in the aftermath of 9/11, have deployed the national security justification for a wide range of matters. Trump, while taking this tack for a number of actions, hasn’t approached what presidents going back decades have done in authorizing the attempted overthrow of regimes in Iran and Guatemala (Eisenhower), as well as in Chile (Nixon); ordering assassinations in Cuba (Kennedy), the Congo (Eisenhower), and Yemen (Obama); expanding the Vietnam War into Laos and Cambodia (Nixon); and bombing Kosovo without authorization (Clinton). This is a short and very incomplete list.
Raising the stakes
But, as Goldsmith notes, Trump, in some other respects, has seen what other presidents have done and raised the stakes. This is true with tariffs, where he used the same rationale as Richard Nixon did in 1971 and of course has gone much further. The executive order strategy for, well, just about everything is also nothing new. Obama’s actions on immigration and Biden’s on student loans providing ample precedent, although Trump is taking it to another level. In addition, Trump’s firings of independent agency leadership at the National Labor Relations Board and other bodies were anticipated by Biden’s removal of the head of the Social Security Administration.
Trump going against congressional intent by not enforcing the TikTok ban? Obama didn’t enforce certain laws on immigration and marijuana, in effect changing the meaning of those laws, as Goldsmith notes. Even the many impoundment actions Trump has taken have precedents, as suggested in this Emory University law review article.
It’s worth highlighting this observation from Goldsmith’s column:
Small departures from traditional limits that seem justified for short-term gains serve as a road map for 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. — Jack GoldsmithTrump’s quantum leap
Perhaps what best crystallizes the extent of the expansion of presidential prerogative under Trump is his apparent ability to effectively decapitate a federal agency whose existence is authorized and whose activities have been fully funded by Congress.
The Wilson Center, a federally-funded foreign policy think tank and DOGE target, gave up without a fight and has shut its doors. Other agencies, including USAID, the National Endowment for the Humanities, the National Endowment for the Arts, and the Institute of Museum and Library Services (there are others), have been reorganized and/or have had their functions cut dramatically back. Leadership and expertise have been summarily removed on a massive scale.
Congress has for all intents and purposes turned a blind eye to these actions. Although, as Neil Peart of Rush once put it in a song written 45 years ago: “If you choose not to decide, you still have made a choice.”
Congress has chosen to abdicate its constitutional role in many areas in the last 80 years or so, but ignoring the wholesale “overhaul” of a federal agency is a new twist.
What can be done?
Maybe a part of the answer to reigning in presidential power is returning to a time when the federal government did less, when it wasn’t involved in every single aspect of our lives from imposing a drinking age to dictating academic curricula and pretty much everything in between, leaving more matters in the social policy realm to the states. But that debate should and really must happen in Congress, with the presidency in its traditional role of proposer, persuader, and negotiator. We’re waiting.
Instead, Trump’s assertion of executive power, especially his wholesale use of impoundment, has neutered Congress. The power of the purse is by far Congress’s most important policymaking “power tool”; abdicating it is an earthshaking change in the relationship between the branches. There have been lower court rulings reinstating certain agency officials and programs that have been “impounded,” if you will, but we await word from the Supreme Court. Even so, judicial actions alone, even from the highest court, are not enough.
So much rides on Congress’s willingness to assert its constitutional prerogatives. Unfortunately, the politics on the Republican side militate strongly against pushing back on President Trump’s actions. What seems to be happening are the beginnings of a period of charismatic authority2 — authority derived from an individual’s personal charisma and not necessarily from laws or bureaucratic routines — leading to potential regime change. Essentially: a political system that has a new way of doing business.
What might that regime look like?
The philosophical contours of it, as laid out in the Project 2025 playbook, include a dominant executive (in keeping with the unitary theory of the executive) presiding over a scaled-back federal government, a government that sloughs off some or all of what it started taking on beginning in the middle of the last century. Those roles that may be on the chopping-block-wish-list of the administration include federal support for STEM (National Defense Education Act of 1957); funding for elementary and secondary education in needy areas, begun in the 1960s; grants programs in the arts and humanities (1965); Pell Grants for low income college students, which were created in the ‘70s; ramped up funding for basic research and medical sciences (1960s); environmental regulations put in place in the 1960s; large scale consumer protections, also in the 1960s; and the the list could go on and on.
It’s still early — we’re only in the first few months of the new administration. But its intentions coupled with the acquiescence of the majority in Congress make the general direction clear.
The stakes going forward are immense. Will the midterms result in a change in power in at least one chamber of Congress? Subpoena authority and dramatically increased leverage in the legislative process would be the critical prizes for Democrats were that to happen. Is it even possible congressional Republicans will begin souring on the administration if economic conditions deteriorate? Only time will tell.
Goldsmith’s Executive Functions substack may be the single best resource on the prerogatives President Trump claims.