Rethinking Presidential Power For The Next Trump Administration

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.

Please consider upgrading your subscription here, or subscribe to my Newsletter if you have not done so already, to help me keep producing content of the highest possible quality. Your financial contributions, whether via an annual or monthly subscription or gift, are greatly appreciated and truly go a long way to helping me keep my writings available to everyone, free of charge.  Thank you in advance for your generosity! God bless!

In the time since January 6^th, 2021, when the illegitimate Biden regime was ushered into power, the United States has been operating under an effective state of emergency, or a post-constitutional crisis. While now at least seven in ten Republicans believe the results of the 2020 presidential election illegitimate (the product of a conspiracy carried out by Far-Left actors, operating both within the federal government via unelected bureaucrats in tandem with rogue district attorneys and judges with radical sympathies), on January 6^th, 2021, the Washington establishment unified around their preferred candidate in Joe Biden. The certification of Joe Biden’s election results may be understood as a joint venture, the product of Democratic decisiveness paired with Republican indifference, where the two arms of the political establishment joined forces in spirit, if not deliberately, to bring down a perceived common enemy considered an existential threat to their authority.

Biden, who supposedly garnered well over eighty million of his fellow countrymen’s votes, the most of any president in history, suffers from the worst approval ratings since Gallup first began polling voters in the late 1930s.  The dichotomy between Biden’s cataclysmic polls (and equally disastrous record), and the sheer number of votes polite society is supposed to believe he generated, is shocking.  Regardless of where one stands on the question of 2020, the shadow of illegitimacy over the regime is long, and grows longer by the day now – tainting every decision the regime makes, good and bad.  As a result, the Biden regime has been paralyzed by its own ineptitude.  Forced into a corner, it knows nothing else than to move vengefully against its chief political opponent in Donald Trump and his most ardent supporters, namely, those who peacefully demonstrated on the Capitol on January 6^th. 

This vindictive act may be interpreted in one of two ways: either an act of absolute power, the ultimate flex of a regime that no longer needs even to keep up the appearance of democratic accountability because it has entirely superseded the forces of political opposition – and can crush any such opposition whenever necessary.  Or, conversely, it may be construed as the final act of desperation by a regime whose natural turn to tyranny is the natural final step of any political system on the brink of collapse.  Either interpretation would suggest that the regime has entered extraordinary waters, one beyond conventional politics, that would, in turn require a radical reappraisal of how government ought to function moving forward.

If the regime is broadly deemed illegitimate in the eyes of most American citizens, it has abdicated any and all authority.  This would, in theory, seem to designate a revolutionary moment in our nation’s history, one that requires the people to re-establish authority by, potentially, extraordinary means.  America’s Constitution bases its authority, ultimately, on the consent of the governed: the will of the people.  If, however, the people believe they are no longer adequately represented by governmental institutions, then the Constitution has been denied its one and only source of legitimacy.  Thus calls the need for revolutionary action.

Now, it may be argued that the Constitution itself is hardwired with certain legal protections to circumvent the need for outright, capital-R Revolution, protections that would function as emergency checks on a regime otherwise spiraling down a tyrannical wormhole. These checks may find their origins in the text of the Constitution itself.  Still, in practice, they function as extraconstitutional guardrails intended to restrain the counterfeit constitution that liberal judges and activists have created over decades, which now operates as the de facto law of the land, nearly replacing the original in toto. 

Contribute $10 or more for a chance to win a signed gift box from President Trump full of HISTORIC MAGA gear!

America, in short, has reached an age of two competing constitutions.  There is the original Constitution, the Founding Father’s handiwork that should be the only and genuine wellspring of our nation’s laws.  And the counterfeit, unwritten constitution, one with no textual basis in anything beyond the positivistic rules and tests devised in the intervening centuries by liberal jurists. The illegitimate Biden regime thus stands as its crowning achievement and the overall project’s natural culmination. 

The two constitutions, legitimate and illegitimate, are radically at odds with one another; whereas Donald Trump may be said to represent the original constitution, Joe Biden represents the counterfeit.  Thus bespeaks the two clashing models of legitimacy: Trump was the democratically elected and, therefore, legitimate President because, unlike Biden, he was decided by the people’s will.  Biden, much like the counterfeit constitution whom he embodies, was installed by force into his office.  Rather than being elected by conventional democratic means, namely, the popular vote, he was illegitimately installed by antidemocratic mechanisms: namely, a system-wide conspiracy orchestrated by unelected administrators actively at work to circumvent “problematic,” so-called “populist” tendencies among the body politic.

So, the question arises: how to restore constitutional legitimacy to a regime that has virtually replaced the original Constitution with an imposter?  The simple answer is to reignite the dying embers of the original Constitution that remain.  Donald Trump, as a mascot for the original Constitution, has, since the day he descended the escalator, run as a political outsider, a democratic battering ram, if you will, intended to cudgel the runaway federal government into submission.  The illegitimate regime of the counterfeit constitution has, in effect, monopolized all three branches of government – virtually the entire Executive Branch, comprising hundreds of thousands of unelected bureaucrats, combined with the judiciary, which has been reverse-engineered to prosecute political enemies over against the fair and equitable administration of justice, have been corrupted almost beyond repair. 

The Legislative Branch, which may be said, despite its widespread unpopularity, to be the most legitimate of the three branches of government, has effectively castrated itself by abdicating all meaningful rulemaking powers over to the administrative state.  As a result, the Congress has rendered itself functionally impotent, a condition that has been worsened in our deeply polarized age, where half of the Legislature is virtually always in the hands of Democrats, the party of the regime, at any given point in time.  The Republicans are the controlled opposition, a party intended to simulate the appearance of meaningful disagreement, lending legitimacy to the regnant order without wielding any real power.  To the extent the Congress is infiltrated, from time to time, by legitimate members who prioritize the interests of the American people, those voices are regularly drowned out by the unified partisan front.  This unified front is composed of Democrats and Republicans alike, which regrettably compose the vast majority of legislatures, both federal and state, and who work in concert with Democrats to undermine, silence, and indeed even expel, if necessary, those “insubordinate” members within their ranks, every step of the way.

Despite that, it may be said that Congress remains the most legitimate of the three branches of government because it, relative to the Executive and Judiciary, better captures the will of the people (relative to the other two branches of government).  However, the people’s will is often subverted by internecine forces within Congress itself, which seek to preserve the status quo no matter what.  But even in those instances where the representative minority prevails over the illegitimate majority, as observed in last year’s ouster of House Speaker Kevin McCarthy, those represented interests do not amount to all that much because of the previously discussed abdication of virtually all meaningful legislative duties to the administrative state. 

So, we have arrived at a constitutional crisis where all three branches of government have strangled themselves off from the possibility of meaningful reform.  Thus begets the question: did the Founders anticipate this possibility?  And if so, did they equip the Constitution with an emergency corrective to deal with the sort of crisis we now face as a country? 

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 efficiency of 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.

The CO Supreme Court just banned President Trump from the ballot! They are deliberately interfering with the election on behalf of Crooked Joe Biden, and eliminating the rights of Colorado voters to vote for the candidate of their choice. Donate now to help keep Donald Trump on the ballot!

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 III 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.

All that said, the original Constitution, not the illegitimate judge and bureaucrat-created imposter, remains the operative law of the land.  For without it, America no longer exists as a meaningful political entity. All authority from each one of its governing institutions would bottom out. Indeed, it is from that very same Constitution that the President derives the authority for his office — and which gives Joe Biden, despite being an illegitimate officeholder, the patina of legitimacy (and downstream from that, political power).  All executive power is housed in the presidency, not the administrative state or even the “Executive Branch,” generally. 

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 Jeffrey Clark, 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 crisis that would necessitate 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, found in both the oral and written historical record surrounding the ratification of the Constitution), but in legal precedent, particularly those Supreme Court decisions 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.

That is not to graft a theory of divine right onto the American presidency one-to-one using the principles of translation imperii.  It is, however, to qualify the “modern” conception of presidential power, so popular among academics and the mainstream press, that wrongly claims that Presidents calling for a broad view of immunity as being somehow ahistorical and incorrect. On the contrary, the American legal tradition overwhelmingly supports the opposite view.

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 authority 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.

Become a member the newly relaunched Italian American Civil Rights League (“IACRL”) today – fighting to preserve Columbus Day and our sacred traditions!

Order your Patriot Cigars today at mypatriotcigars.com and use Promo Code: TRUMPWON for 15% OFF!

An abridged version of this piece was originally published in American Greatness, and can be found here.

Paul Ingrassia is a Constitutional Scholar; a two-time Claremont Fellow, and is on the Board of Advisors of the New York Young Republican Club and the Italian American Civil Rights League. He writes a widely read Substack that is regularly re-truthed by President Trump. Follow him on X @PaulIngrassia, Substack, Truth Social, Instagram, and Rumble.