Trump cannot remake the government with the stroke of a Sharpie

Washington Post

05-05-2025

Alan Raul is board secretary of the Society for the Rule of Law and a lecturer at Harvard Law School. He served as legal counsel in the Ronald Reagan and George H.W. Bush administrations.
The U.S. district and appeals courts are inundated with fast-moving cases challenging President Donald Trump for (among other things) dismantling federal agencies established by Congress, firing members of independent boards and commissions who don't serve at the pleasure of the president and terminating inspectors general whom Congress endowed with a measure of independence for effective oversight of the executive branch.
The judges (and shortly, the Supreme Court justices) who will be deciding these cases need to remember that, under the Constitution, Congress's legislative power to set polices and rules to govern the executive branch must generally prevail over presidential executive orders and unilateral mandates. These courts must reject any extreme version of the 'unitary executive' theory — a legal concept that would allow the president to disregard the contours and safeguards that Congress prescribes for the executive branch to follow. Unchecked presidential power is not what the Framers had in mind.
My analysis might be a surprise coming from an associate White House counsel to President Ronald Reagan. In fact, I served in the White House during the years when the unitary executive theory came into vogue, and indeed, I supported it. Today, however, we can all see how an unleashed president can wreak havoc on constitutional order and the rule of law. I can also see how the Supreme Court's unitary executive decisions of recent years have been, by focusing disproportionately on 'separation of powers,' far too solicitous of presidential power against encroachment by an intrusive Congress.
But the constitutional genius of America is checks and balances. And by rereading the Federalist Papers and looking back at earlier Supreme Court decisions, the courts can restore a rule of reason on how legislative and executive power are meant to operate together. This is crucial now because the cases involving the Federal Trade Commission, National Labor Relations Board and Privacy and Civil Liberties Oversight Board are coming up fast and might reach the Supreme Court quickly through the court's emergency 'shadow docket.'
Though the Constitution vests the president with all executive authority, it vests Congress with all legislative authority, including, significantly, the power to set fundamental policies and procedures for the executive branch.
The Framers exalted the separation of powers, but they also understood that the branches' authorities were not designed to be 'wholly unconnected.' In fact, in Federalist 48, James Madison wrote that the branches 'should not be so far separated as to have no constitutional control over each other.' In Federalist 47, he noted that a 'partial mixture' of governmental powers is necessary for the preservation of liberty. This is why Congress is not usurping or encroaching on presidential authority when it exercises its sole power to establish (or sunset) executive departments and offices, mandate binding spending levels, impose independent oversight and, within certain limits, set up agencies whose boards are composed of bipartisan commissioners that do not serve at the pleasure of the president.
So, what is Trump supposed to do if he believes that the government is bloated, spending is out of control, and programs and policies are poorly conceived?
Answer: He must recommend to Congress corrective measures that he deems 'necessary and expedient,' just as Article II of the Constitution provides. As every schoolchild in America knows — or should know — it is for the president to propose and Congress to dispose.
As luck would have it, the U.S. Code includes laws detailing how the president can recommend spending rescissions and government reorganizations for Congress to vote on. Indeed, the existing Impoundment Control Act of 1974 and the Reorganization Act Amendments of 1984 set forth specific procedures for the president to propose spending cuts and plans to transfer all or part of an agency to the jurisdiction and control of another agency; or to consolidate or abolish all or part of the functions of any given agency.
But Trump cannot just do it with the stroke of a Sharpie.
This is not controversial. The conservative Heritage Foundation wrote in 2017 that 'under current law, the President has no statutory authority to reorganize the executive branch, except where acts of Congress delegate authority to make particular changes.' Republican members of Congress fully understand this limitation. In February, Sen. Mike Lee (R-Utah) and Rep. James Comer (R-Kentucky) introduced the Reorganizing Government Act. Their bill, as a joint news release claimed, was intended to facilitate up or down voting on 'plans submitted to Congress by President Donald Trump in order to streamline government operations to better serve the American people.' A House panel even approved the measure on March 25.
Yes, the Framers were amazing, but they were not always clairvoyant. They believed the president would always be weak relative to the legislature, and they didn't foresee political parties. The ensuing centuries have shown that presidents are generally strong and energetic, while Congress is frequently stalemated and quiescent. And partisan politics now predominates over the institutional rivalry that the Framers expected would suppress interbranch power grabs. Nonetheless, they did approve of 'auxiliary precautions,' as described in Federalist 51, to guard the people against oppression by their rulers. It was for this very purpose they created a 'structure of the government' that would 'furnish the proper checks and balances.'
This trip down Federalist lane is necessary because, last year, the justices egregiously disregarded checks and balances in granting presidents near-absolute immunity to violate criminal law. Egregious because if there is one check and balance that should always be paramount in our democracy, it is that no man is above the law — especially criminal law. Yet the court's immunity decision did not once mention 'checks and balances' to protect the people — it mentioned only 'separation of powers' to insulate the president.
To begin to scale back this over-deference to the commander in chief, the current justices can look to their predecessors' 1952 decision in Youngstown Sheet & Tube v. Sawyer. In Youngstown, the court struck down President Harry S. Truman's unilateral decision to take possession of a steel mill — by executive order — that the president claimed was necessary to prevent a nationwide strike that would jeopardize national security. The claimed authority, the court held, was inherently legislative in nature, and could not be justified in the absence of a law from Congress or a clear authorization in the Constitution itself.
The court's wisdom in 1952 should guide the courts now in ruling on the validity of Trump's various executive orders. Trump's actions are based in radical claims of power that do not exist. As prior justices understood, unchecked presidential power and unbalanced executive chaos is not what the Framers had in mind.