While Democrats are dithering and debating with consultants about which anti-Trumpian strategy to adopt, courts are confronted with an unprecedented power grab by the president. Donald Trump and Elon Musk are simply not spending money appropriated by Congress, which in turn is unwilling to play its constitutional role and assert the power of the purse. Entire agencies are de facto dismantled – which is also unconstitutional – and civil servants protected from removal by a president keep getting pink slips.
The illegality of it all seems so obvious that one would think defenders of democracy could relax and trust judges to do the right thing. But it’s not just that some judges seem to be in the president’s pocket – as evidenced by Trump, after his address to Congress, patting the supreme court’s chief justice on the back and thanking him for a favor he won’t forget, mafia-style. It is also that some jurists have been itching to defend a further concentration of presidential power – John Roberts likely among them.
Conservative lawyers trace what is known as the “theory of the unitary executive” – which is also reflected in Project 2025 – back to the founding; according to this theory, the president should always be able to remove officers at will. There are also not supposed to be independent agencies (though even diehard defenders of the unitary executive theory exempt the Federal Reserve: markets wouldn’t like the idea of politicians fiddling with interest rates before an election).
As with so much history told by conservative lawyers, this account is largely bogus. But the call for a strong executive is not necessarily a rightwing agenda: it was also issued by progressives early in the 20th century and shared by Franklin Delano Roosevelt, whom wanted to fire civil servants who he thought were sabotaging his New Deal. But, as the legal scholar Noah Rosenblum has shown, the committee on administrative management, a presidential advisory panel that sought to empower Roosevelt, also proved acutely aware of the dangers of fascism. A crucial lesson of the 1930s was that an executive should never become an extension of the personality of the president. Hence, they advocated for a separation of powers also within the executive.
The Reagan revolution did not spare the administrative state: much stronger oversight of agencies was instituted to push a deregulatory agenda. One of Reagan’s successors, Bill Clinton, shared some of that neoliberal agenda; in the face of a hostile Republican Congress, he sought to advance policies with executive orders (and talk about them loudly from the bully pulpit). He also reduced the federal workforce, but, unlike with Trump’s shock troops, the idea was never to “traumatize” civil servants.
The “unitarians” – Clarence Thomas foremost among them – keep invoking democracy as the only appropriate check on a president. Some law professors have gone so far as to argue that an unbound executive – unbound from meaningful restraints by Congress and the judiciary – is not something to lose sleep over, since, ultimately, “public opinion” will set a limit on any illegitimate conduct by a president.
Such a notion – very much welcomed by the George W Bush administration pursuing its global “war on terror” – runs afoul of a basic fact: citizens will in all likelihood not be terribly familiar with the finer points of regulatory policy (Justice Elena Kagan has pointed out that courts aren’t either, which is why checks by experts inside the executive are so important). The trust in public opinion appears also exceedingly naïve in a highly polarized country featuring an enclosed rightwing media ecosphere that values political validation over accurate information.
What’s more, independent agencies in charge of elections and media regulation – not to speak of independent prosecutors – are crucial for the preservation of democracy as a whole; if they can be manipulated, “public opinion” can hardly be a restraint on an aspiring autocrat. It is not an accident that countries such as Turkey, Hungary and Poland have seen a hijacking of what were meant to be non-partisan commissions by populist parties.
The assault on what Mike Johnson has called a “totalitarian” fourth branch of government could proceed without mass firings of probationary civil servants, the senseless destruction of data and expertise and other wanton acts of sabotage; in fact, it seems completely to undermine the very goal of a strong president fully in charge of a competent executive. But then again, not just since Trump, the GOP has made government dysfunctional in order to convince citizens that it can never be competent.
Musk claims privatizing much of the state and handing it over to tech bros will bring “efficiency”. Never mind whether that is true – experience suggests the opposite – and never mind the corruption that will come with it; it is also difficult to square with the notion of a president being visible, responsible and accountable. As the Stanford political scientist Adam Bonica has shown, rather than pursuing efficiency, Trump and Musk are simply taking a chainsaw to whatever institution is considered “liberal” and assists the worst off. The result will be an executive all at once unchained, chaotic and corrupt.
Jan-Werner Müller is a professor of politics at Princeton University and is a Guardian US columnist
