To address this dilemma, we may begin, simply enough, with the vesting clause, Article II, Section 1 of the Constitution, which states, “[t]he executive power shall be vested in a President of the United States.” The vesting clause makes crystal clear where all executive authority begins: not in the administrative state, a post-constitutional outgrowth of the executive authority, but in the President himself, who is the legitimating authority for the entire Executive Branch, out of which all other authority, including the sovereignty enjoyed by the Department of Justice and various intelligence agencies, is derivative. And, as we all too often see in our deeply polarized age, it is the President who is the most legitimate officer, not only within the Executive Branch but arguably in the whole of the federal government, for he is the one true democratic actor, assuming a relatively legitimate election process within what may be described as a post-constitutional government. It is “post-constitutional” insofar as the current regime is overwhelmingly composed of unelected officers acting with little to no authority from the true Constitution.
In addition to best expressing the will of the people, the President’s legitimacy may also be described in more procedural terms as a function of the efficiencyof his office. Being that the Constitution vests the executive power in a single President rather than a parliamentary model, for instance, of an executive administration or something equivalent to a corporate board of directors, the Constitution allows him to act swiftly and decisively without the gridlock, such as debate and compromise, that a more traditionally deliberative body, like Congress, cannot avoid.
To the extent the Constitution prescribes checks upon the President’s authority to act, those checks are, apart from the Impeachment Power, largely conventional—that is to say, not formally prescribed by the Constitution. This is intentional. Indeed, it may be argued that the President’s theoretically unbounded powers to act were the deliberate product of a ratification process that foresaw such a potential crisis and hardwired a remedy ex-ante into the constitutional calculus. The implied emergency powers the Constitution confers upon the President would allow, under extraordinary circumstances, the President to exercise supreme, even unlimited, power, depending on the gravity of the crisis. This would enable the President to salvage and revive the legitimate Constitution from the forces that would otherwise seek to destroy it when confronted with a threat to its security.
In practice, much of the academic discussion regarding executive power tends to exaggerate the expansion of presidential power throughout time while understating the fundamental distinction between presidential power and administrative power, both of which are contained in the Executive Branch but act independently of one another. This kind of argument, which fails to separate the two, is gravely misguided because it overstates the extent to which the President and the rest of the Executive Branch share a common ideology and agenda. In most real-world cases, the president is functionally reduced to a mere figurehead role; in the post-constitutional state, his primary role becomes that of simulating the appearance of democratic control, even though the branch over which he presides is overwhelmingly run and administered by unelected administrators who march to the beat of their own drum.
This model of governance, where the President becomes absorbed into an administrative apparatus, creating a regime where things effectively administer themselves, results in a condition where politics, historically understood, ceases to exist meaningfully. This end state arguably reached its apotheosis in the Biden regime. Biden sharply contrasts with Donald Trump’s model of legitimacy, which, in sharp contrast with the current administration, displayed a President attempting to revive the operative and constitutionally prescribed function of his office and wrest those powers textually vested in him from the federal bureaucracy.
In juxtaposing the two models, it becomes evident that, in sharp contrast with legal scholars who readily conflate presidential and administrative power, legitimate presidential powers are now, in fact, at their weakest in history. The relationship between legitimate presidential power is inversely related to the rise of illegitimate administrative or bureaucratic power (the so-called “deep state”), which is the true source of the asserted “expansion” of presidential power, often the bugbear of academics.
In reality, a legitimate President, such as Donald Trump, wields power over the rest of his government in a manner tantamount to how King Charles II now wields power over the British Parliament—a role that time has rendered by and large ceremonial in actual practice. The one difference between the modern British Monarchy, which has been rendered politically impotent, and the American President, however, is that an American President can wield power so long as his aims are in lockstep with the goals of the administrative state, in accordance with the unwritten, illegitimate constitution. Wherever differences arise, the President must invariably bend the knee to the administrative state or be met with damning consequences. That, today, is the only source of presidential power, but it is notably derivative and subordinate to the power of the administrative state.
In theory, the President should be able to exert unbridled control over the rest of his branch of government. This view is supported by many legal scholars, such as John Yoo, and even some prominent judges, including Justice Alito, under the general idea of “unitary executive theory.” Unitary executive theory ensures “the federal government will execute the law consistently and in accordance with the president’s wishes.” Under the theory, the President is the master of his ship—a ship that includes the entire Executive Branch, which is subordinate to the President’s authority.
Deeper problems arise concerning issues of sovereignty. Given our state of constitutional emergency, conflict emerges over how a legitimate President might both theoretically and practically exercise constitutionally prescribed powers to restore the original, legitimate Constitution. Surely, if the whole regime, including the entire administrative state, is founded on dubious, if not downright unlawful, grounds, then it makes sense that a President should be able to exercise complete authority over those illegitimate actors theoretically subordinate to him, by any means necessary, to restore proper legitimacy. The Vesting Clause of Article II, Section 1, is supplemented by the Take Care Clause of Section 5 of that same article, which states, in relevant part, that “[t]he President shall take care that the laws be faithfully executed…”
So, the Constitution expressly vests executive power in a singular magistrate and instructs that magistrate to execute the laws faithfully. The chief magistrate is the exclusive individual tasked with this sweeping constitutional prerogative. This prerogative would seem to license an expansive, virtually unlimited view of presidential power. This makes sense, given that Presidents would ordinarily not resort to such extreme measures unless they were confronted with a state of emergency that would necessarily require the use of those emergency powers to restore legitimacy. Support for this view is found not just in the Constitution itself (and the attendant debate by the Founding Fathers, oral and written, contained in the historical record surrounding the ratification of the Constitution), but in legal precedent, particularly those Supreme Court cases dealing with presidential authority over external affairs.
In the seminal Supreme Court decision, United States v. Curtiss-Wright Export Corp. (1936), for example, the Court held that the President enjoys special powers to act as the “sole organ of the federal government in foreign relations.” The “sole organ” doctrine is necessarily a theory of expansive, arguably unlimited, presidential powers, at least in the domain of foreign relations and national security, where the Constitution has very little to say. Harvard academic Adrian Vermeule argued (and quite persuasively) that the theory behind the Court’s decision was that of transferred sovereignty, the principle of translation imperii. In that case, Vermeule maintains that the Supreme Court traced the source of legitimacy for presidential power, at least in the arena of international law, to “the British Crown according to pre-existing general principles of international law, the ius gentium.”
This finding would seem to lend strong support to the view that in American law, there is a supplemental, albeit longstanding and no less authoritative, tradition that allows for broad, perhaps even unlimited, in certain circumstances, uses of presidential power. The authority for those powers lay far beyond the formal creation of the Union itself, and more generally, they find their antecedents in the laws of nations, the natural law, and, as Vermuele suggests, maybe even the divine law.
And since the advent of the administrative state, which has no basis in the text of the Constitution whatsoever, legitimate presidential power (in contrast with illegitimate presidential power) has decreased exponentially, to the point of being reduced to a mostly ceremonial role, as observed under the first Trump administration. However, what amounts to an unfortunate accident of history, the product of a decades (if not centuries)-long conspiracy executed by anti-democratic agents, such as judges and unelected bureaucrats, that have subverted the Founders’ Constitution by replacing it with an unwritten counterfeit, in effect establishing a new norm, does not mean that such a norm is legitimate. Legitimacy may only be found in the original Constitution. Thus, judicial agents, given the constitutional mandate to interpret the legitimate source of authority, absolutely must give deference to an expansive view of presidential power to truly (small-d) democratic Presidents, like Donald Trump. These are Presidents that have been elected to national government by popular fiat in order to reestablish the legitimacy of the legitimate Constitution.
To the extent they fail in that prerogative, it will only further undermine the will of the people, the only legitimate sovereign, and render more damage to the legitimate sovereign, creating a recipe for disaster for the long-term stability of the Union. Let us hope and pray that cooler heads prevail and the legitimacy of the original Constitution will be saved by the complete restoration of presidential power to its original purpose before we reach a point of constitutional crisis beyond repair.
