Trump’s overreach comes from decades of misguided legal ideas.

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Over President’s Day weekend, Donald Trump posted, “He who saves his Country does not violate any Law.” This is a quote attributed to Napoleon — you know, the guy who crowned himself emperor. For a long time, the trope went that people who were delusional thought they were Napoleon. No one’s laughing now.

Less incendiary but perhaps more consequential, yesterday Trump signed an executive order

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that purports to seize control of independent agencies such as the Federal Trade Commission, the Federal Communications Commission, and the Federal Deposit Insurance Corporation. These expert bodies fight monopolies, police bank safety, organize the broadcast industry, and more. They are central to the entire edifice of modern government, built up over the past 140 years, which ensures that the free market does not devolve into an abusive free-for-all.

The new president’s power grab may get clothed

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in legalistic garb by the highest court in the land and some academics and advocates will applaud the decision. Very soon, we will be hearing a lot about the “unitary executive theory.”

The framers of the Constitution were vague about what the president could and could not do. They knew that George Washington would be the first, but beyond that, things were a bit fuzzy. Supreme Court Justice Robert Jackson wrote in 1952 that what they intended “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

But the framers were clear about one thing: They did not want a monarch. They gave Congress the power of the purse, for example, and spending bills had to start in the House of Representatives — at the time the only federal officials chosen by popular vote. Even though the Constitutional Convention’s proceedings were secret, an official leak

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informed a local newspaper that “tho’ we cannot, affirmatively tell you what we are doing; we can negatively tell you what we are not doing — we never once thought of a king.”

Over the two centuries since, as we developed into a modern country, the government grew in complexity and importance. Industrial abuses drove political leaders, including Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt, to develop the modern state to protect the public interest. Often, Congress created independent bodies whose members would be nominated by the president and confirmed by the Senate, but with fixed terms and other kinds of independence. Presidents and Congress tussled about their roles as the presidency grew in power, especially during wartime, and Congress at times pushed back.

And always, presidents and officials of the executive branch were subject to the rule of law.

After FDR expanded power during the New Deal and World War II, the Republican Congress responded with laws such as the Administrative Procedure Act to ensure that government agency actions would follow rules, be transparent, and have a basis beyond whim.

Some legal theorists argued that this was all a big mistake. They claimed that the Constitution placed all the power of the executive branch in the hands of one person, rule of law be damned. They called this the unitary executive theory, which is a fancy way of saying that a chief executive can rule over the executive branch like a monarch. In other words, every one of its millions of employees serves at the president’s beck and call as though they were caddies at Mar-a-Lago.

This idea draws from the Constitution’s language

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that “the executive Power shall be vested in a President” who should “take care that the laws [passed by Congress] be faithfully executed.” Many of the cases already steaming toward the Supreme Court will test what this means.

The first, considered this week, will assess whether the White House can fire the independent head of a watchdog agency charged with protecting federal workers. It probably won’t make constitutional news. The justices likely will rule on procedure and avoid the big questions.

But in the cases after that, there will be no avoiding the audacious claim. Trump has tried to fire commissioners with fixed terms from the National Labor Relations Board and other independent bodies. Doing so violates a 1935 case, Humphrey’s Executor v. United States

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, in which FDR dismissed a reactionary official who insisted on showing up at work even after he had been fired. The Court ruled that experts in independent agencies, whom Congress said should be appointed for a term of years, are protected from the whims of a president.

Yesterday’s executive order goes further than FDR did. It requires independent agencies not just to serve at the pleasure of the president but to submit their work for his approval as well. They would lose budgetary protections, too.

Trump’s power grab extends throughout the executive branch. He has fired inspectors general without informing Congress as required by law, he claims the right to personally direct prosecutions, and more.

Outlandish? Maybe. But this push is the culmination of decades of pressure from conservative organizations and lawyers who have sought a way to dismantle government and curb its power to intervene in markets. Dozens upon dozens of law review articles, Federalist Society panel discussions, and quiet grants from conservative donors have pressed in this direction since at least the 1970s. When the Supreme Court upheld the constitutionality of the independent counsel law in Morrison v. Olson, Justice Antonin Scalia was the sole dissenter — but his views are now so widely accepted on the right that many assume his was the majority opinion.

What will the Supreme Court do? Ominous signs came from the notorious ruling

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last summer granting ex-presidents wide immunity from accountability to criminal law. That case did not rely on the unitary executive theory, but Chief Justice John Roberts could not help but sing the tune. The president is “the only person who alone composes a branch of government,” he wrote.

Justice Sonia Sotomayor saw the chilling implications of that line of thinking. “In every use of official power,” she warned, “the President is now a king above the law.”

A Dangerous Shift at the DOJ

Last week’s wave of Justice Department resignations over the order to drop corruption charges against New York City Mayor Eric Adams was eerily reminiscent of the infamous Nixon-era “Saturday Night Massacre.” The order, which undermines the decades of post-Watergate efforts to shield the DOJ from the White House’s influence, also signals the administration’s larger “aim to transform the department into the president’s own personal law enforcement agency,” Lauren Miller Karalunas writes. Read more

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Rise of the Tech Oligarchy

Tech billionaire Elon Musk, Donald Trump’s top campaign donor turned right-hand man, is rampaging through the federal government with no regard for his massive conflicts of interest. The collapse of legal safeguards against big money in politics, the expansion of presidential power, and weakened checks from Congress and the courts have led to this moment. The need for bold solutions is apparent, starting with overturning damaging Supreme Court rulings such as Citizens United and restoring checks on executive power. “The next wave of reform must also address the concentrated power of a few tech oligarchs as a core antidemocratic threat,” Lawrence Norden and Daniel Weiner write. Read more

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Who Will Protect Elections Now?

Our election system has become another target in the Trump administration’s crusade against federal agencies. Last week, it ordered the Cybersecurity and Infrastructure Security Agency — a key player in protecting elections over the past decade — to stop “all election security activities” pending an internal review, and it halted funding for a critical group that helps officials monitor cyber threats. “Lawmakers, governors, and other public leaders, together with civil society, must step into the space vacated by the federal government,” Lawrence Norden and Derek Tisler write in Slate. Read more

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Elections in the Age of AI

The 2024 election cycle was the first of the artificial intelligence age, and it was marked by fears of deepfakes and disinformation campaigns running rampant. While the worst-case scenarios didn’t unfold, this technology’s growing impact on misinformation and election processes suggests that AI will only become more influential in future elections. Tech companies’ voluntary promises to tackle AI risks are far from sufficient

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. Instead, a Brennan Center report urges policymakers to act now to set regulations that ensure that AI strengthens rather than undermines democratic processes. Read more

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How Courts Ensure Compliance

More than 10 federal courts have already blocked or rejected the Trump administration’s sweeping executive orders, and many more lawsuits are still pending. Nonetheless, some of Trump’s top allies have hinted that the government might ignore court rulings that it doesn’t agree with. A new Brennan Center explainer breaks down the tools that federal courts have available to enforce their orders and the penalties officials could face for defying them. Read more

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For-Profit Immigrant Detention at a Crossroads

A high-stakes legal battle could force private prison companies running U.S. Immigration and Customs Enforcement detention centers to pay detainees the state minimum wage for voluntary work. The case revolves around GEO Group, a federal contractor that runs a detention center in Washington where detainees are paid just $1 a day for their work. A Brennan Center analysis explains what the outcome of the case could mean for the federal government’s network of immigrant detention facilities. Read more

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Coming Up

VIRTUAL EVENT: A Presidential Lawbreaking Spree

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Monday, February 24, 3–4 p.m. ET



Donald Trump’s first weeks in office have been marked by disregard for the rule of law. And he appears to have delegated extraordinary power to his unelected patron, Elon Musk. Courts have responded, issuing a slew of orders demanding that the new administration comply with federal law and the Constitution — as it is required to do.



Join us for a conversation with Brennan Center experts who are uniquely positioned to provide vital context and expertise during this period of upheaval. Our lawyers and policy advocates will discuss what’s happening to our democracy and how you can play your part in defending the rule of law. RSVP today

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News

Elizabeth Goitein on Trump’s abuse of executive powers // NPR

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Ames Grawert on bail reform // WKBW

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Douglas Keith on the Trump administration’s assault on the rule of law // SALON

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Wendy Weiser on the SAVE Act’s impact on marginalized voters // GLAMOUR

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