Opponents of Donald Trump’s whirlwind return to the presidency scream “constitutional crisis.” They claim that the administration will defy the courts, then overthrow the constitutional structure and govern by executive decree. The New York Times editorial board alleged that many of Trumps’ first moves “blatantly exceed what is legally granted. He and his supporters have sought to undermine those best positioned to check his overreaches of power. And he is moving to eliminate the tools of accountability in government.” Almost 1,000 law professors chimed in with a letter claiming Trump’s actions are “beyond his constitutional or statutory authority.”
Claims of a constitutional crisis are overblown, if not completely imaginary. Critics would have a better claim to credibility if they were not so obviously partisan. These same authority figures did not warn of a constitutional crash when President Joseph Biden, without congressional authorization, forgave an estimated $400 billion in federal student debt – a constitutional “power grab” if there ever was one, and a far cry from anything Elon Musk’s efficiency drive will find in cuts.
They saw no constitutional crises when the Biden administration claimed emergency powers under COVID-19 to shut down the economy, halt most travel in the nation, require mandatory vaccinations and support the closures of churches, schools and even political meetings.
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Many of these same commentators supported packing the Supreme Court when the justices ruled to end “Roe v. Wade” and racial preferences in college admissions. They propagated the Russian collusion hoax, supported using prosecutions to drive Trump from the 2024 race and endorsed the attempt to bar Trump from the ballot. For these “guardians” of the Constitution, constitutional crises can only erupt under Republican presidents.
But pretend that the accusations did not have partisan motives. President Trump’s first months in office simply do not rise to the level of a constitutional crisis. Trump is instead restoring energy to the executive after four years of a presidency where a coterie of aides surrounded a president clearly debilitated by advanced age – the madness of King George rather than the energy of George Washington.
As Alexander Hamilton explained in The Federalist, the Constitution concentrates the executive power in the president alone because “Decision, activity, secrecy, and despatch, [sic] will generally characterize the proceedings of one man.” Those qualities will produce “energy in the executive,” which is “a leading character in the definition of good government.”
Of course, an unwarranted use of presidential power could cause a constitutional crisis. But a fair look at history shows that the current controversy over Trump’s executive orders falls far short of the major constitutional crises of the American past.
The first constitutional crisis occurred under our first and greatest president, George Washington. During the European wars triggered by the French Revolution, Washington proclaimed neutrality. The Constitution, however, did not explicitly grant the president control over foreign relations. Hamilton defended Washington with the original “unitary executive” thesis: that the Constitution vests in the president all power by its nature executive, which is not specifically transferred by the Constitution to Congress.
Thomas Jefferson, then serving as Secretary of State, and James Madison, a leading supporter of the Constitution’s ratification, accused Washington of monarchism and formed the first political party, the Democrats, in opposition.
A second constitutional crisis occurred under President Andrew Jackson, who came to office promising to shut the Bank of the United States – the forerunner to today’s Federal Reserve. Congress had already authorized the bank twice, the Supreme Court had upheld its constitutionality in “McCullough v. Maryland,” and President James Madison – who had argued against the bank as a congressman – changed his mind and signed the legislation.
Nevertheless, when the bank came up for renewal, Jackson claimed the right to interpret the Constitution too, concluded the bank fell outside federal power, and vetoed the bill. Jackson then removed all federal funds from the bank, effectively killing the institution and triggering a financial panic. Kentucky Senator Henry Clay accused Jackson of conducting a “military dictatorship” and led a successful campaign in the Senate to censure the president.
The most serious constitutional crisis in American history was obviously the Civil War. When 11 states committed the mortal sin of withdrawing from the Union to preserve slavery, President Abraham Lincoln launched emergency measures without the participation of Congress.
Lincoln raised an army and paid for it out of the treasury, sent the military into offensive operations against the South, imposed a blockade on Confederate ports, and ordered the detention of Confederate sympathizers throughout the North. He issued the Emancipation Proclamation freeing the slaves under his sole commander-in-chief authority.
Lincoln subsequently sought the approval of Congress for many of these decisions and the Supreme Court generally upheld his measures, but critics forever after labeled Lincoln a wartime dictator.
The most recent constitutional crisis that truly lives up to the name was triggered by President Franklin Roosevelt’s New Deal. In response to the Great Depression, FDR and large Democratic congressional majorities enacted a sweeping expansion of federal power over the economy and society.
The Supreme Court, however, kept its commitment to a Constitution of limited, enumerated federal powers and blocked much of FDR’s early New Deal. After a stunning reelection victory, FDR responded by proposing to expand the Supreme Court from nine to 15 Justices. He accused the Court of “improperly set[ting] itself up as a third house of the Congress – a super-legislature,” that was “acting not as a judicial body, but as a policy-making body.”
Even though Congress rejected FDR’s court-packing plan – perhaps the most serious attack in American history on judicial independence – the court quickly changed course and upheld the rest of FDR’s New Deal.
Critics of Trump will compare his recent expansion of presidential power to President Richard Nixon. But compare the sharp differences between the first weeks of the new administration and Watergate. Today, Trump is advancing a political platform that received the support of the American people in the November 2024 elections.
He campaigned on taming the administrative state; his orders reduce spending, slim the federal workforce and narrow the sweep of federal regulations. Watergate, by contrast, arose from the Nixon re-election campaign’s dirty tricks and the White House’s obstruction of justice that allegedly followed. Nixon ultimately resigned rather than face impeachment.
Trump’s opponents – including some district court judges – do not recognize the force of these historical comparisons. One such district judge ruled that Trump had no authority to fire the chair of the National Labor Relations Board. “An American president is not a king – not even an ‘elected’ one – and his power to remove federal officers and honest civil servants like plaintiff is not absolute,” she declared.
Had she been following the trends in Supreme Court jurisprudence more diligently, she would have seen that Trump has a reasonable – indeed, likely a winning – argument for a constitutional power to remove heads of regulatory agencies.
The Trump administration is openly challenging the constitutionality of statutes that purport to provide “for cause” removal protections for “independent” regulatory agencies such as the NLRB, the Federal Elections Commission or the Securities and Exchange Commission.
These agencies exert extraordinary power over many aspects of American life, including the stock exchanges, mergers and acquisitions, election campaigns and labor unions. Their functions are executive because they are charged with enforcing the law.
By insulating key executive officials from removal from office, Congress has unconstitutionally fractured the president’s sole executive power under Article II. Agency “independence” upends the constitutional scheme in which responsibility for executing the law lies with the president and vests it instead in unelected officials. Rather than seeking to become a “king,” Trump is restoring the authority that the Constitution vests in all presidents.
The president’s removal authority was clearly affirmed in a 1926 Supreme Court opinion, “Myers v. United States.” Myers was authored by Chief Justice William Howard Taft, a distinguished and scholarly jurist who had also been president.
Taft’s masterly opinion relied on the plain text of Article II, the overall structure of the Constitution, the crucial 1789 debate in which the First Congress, led by Madison and other Framers, affirmed presidential removal power, and the ensuing decades of governmental practice that ratified the 1789 decision.
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Trump critics, like Judge Beryl A. Howell, hang their hats on a later and much weaker precedent, “Humphrey’s Executor v. United States,” that was delivered only nine years after Myers. Humphrey’s Executor upheld the for-cause removal protections of a member of the “independent” Federal Trade Commission on the implausible theory that the FTC was “charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” That the “enforcement of the policy of the law” is a core executive power escaped the court’s attention.
In seeking to reinstate Myers and overturn Humphrey’s Executor, the Trump administration is following the trend in recent Supreme Court decisions. The unraveling of Humphrey’s Executor began with Justice Antonin Scalia’s powerful 1988 dissent in the “independent counsel” case, “Morrison v. Olson.”
The essence of Scalia’s argument was accepted by the Supreme Court in two 2020 decisions, “Selia Law v. CFPB” and “Collins v. Yellin.” The Biden administration invoked these decisions in 2021 when firing the commissioner of Social Security, who was protected by a for-cause removal statute that Biden’s Justice Department determined to be unconstitutional.
Humphrey’s Executor still clings to life by a thread, because Selia Law had distinguished between “single-head” independent agencies (such as the CFPB) and “multi-member commissions” (such as the FTC in Humphrey’s Executor). But the reasoning in Selia Law carries over to multi-member commissions. Indeed, as Justice Elena Kagan’s dissent pointed out in Selia Law, multi-member commissions are, if anything, harder for the president to control.
In asking the Supreme Court to overturn Humphrey’s Executor, Trump is hardly acting like “a king.” Rather than threatening the rule of laws, Trump is upholding it.
Robert Delahunty, co-author of The Politically Incorrect Guide to the Supreme Court, is a Washington Fellow of the Claremont Center for the American Way of Life.
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