The old constitutional framework has passed its expiration date. The alternatives range from a constitutional convention to radical devolution.
By Greg Guma
The US Constitution contained many brilliant ideas. But it outlined the new nation’s structure and system of laws almost 250 years ago, just eight after the Articles of Confederation — the first Constitution — were adopted. It’s time to ask serious questions about whether it still works.
The Articles were called a voluntary “league of friendship.” But the basic framework — largely independent states and a limited central government — was vulnerable to commercial schemes and corruption, conflicts between small and large states, and difficulties regulating new territories. State legislatures and communities often refused to support actions proposed by the Council of State, which managed general affairs. The national government couldn’t tax the states or exert authority over individuals.
America soon faced a serious fiscal crisis. As George Washington put it, what the country needed was “a power that will pervade the whole nation.” At first, he and others claimed that the Articles simply could be amended. But that was just a pretext for what became a Constitutional Convention. And instead of adopting amendments, they abandoned the Articles, started from scratch, and ended up replacing state and local control with federal supremacy.
Now we know that they failed to resolve many of the underlying problems.
The group of men who developed the plan principly gave Congress power over the new government. That was no surprise, since the Articles had created weak legislative and executive branches. The tyranny of the British Crown remained a vivid memory. So the framers searched for a middle way, something new between an ineffectual central government and a voracious dictatorship.
To that end, Article I of the new US Constitution stated clearly that law-making was in the hands of Congress, a power that couldn’t be abdicated or transferred to another branch of government. But nothing prohibited the delegation of power. Instead, the authority of Congress rested on three principles — separation of powers between three branches of government, the idea that delegated powers cannot themselves be delegated, and due process of law. The third of these implied that the regulatory powers of Congress couldn’t be given to private individuals. If that happened, people would be denied due process — exactly what is happening with Donald Trump and Elon Musk in charge.
In 2020, near the end of his first term, Trump made his view crystal clear: “When somebody’s president of the United States, the authority is total.”
For a long time after the constitutional system was created, the Supreme Court interpreted delegation liberally. For example, in an 1825 case, Wayman v. Southard, it said that Congress could delegate power to federal courts, but basically for the purpose of “filling in the details” of laws. Even in an 1892 case, Field v. Clark, which authorized the President to suspend a tariff, the chief executive wasn’t granted authority to make laws. In this and other Court cases, it reiterated the rule that Congress couldn’t delegate its basic functions.
But as the nation became more complex and industrial, Congress was forced to turn over more power to administrators. Today they’re called bureaucrats, and sometimes the “deep state.” Members of Congress weren’t elected because of their technical skills, and couldn’t keep up with all the changes. Neither could the Courts, which could only act in response to a specific case or controversy. Over time, more functions were performed by presidents and an ever-expanding number of executive agencies.
By the time Franklin Roosevelt’s “new deal” administration began, Congress was delegating power whenever it felt necessary — with little concern about Court disapproval. Of course, “unfettered” power (whatever that means) would be unconstitutional. But until 1935, the Supreme Court didn’t rule that any specific delegation was too much.
Then, in Panama Refining v. Ryan, concerning the National Industrial Recovery Act, passed to end the Depression and restore prosperity, the Court ruled that Congressional delegation of power to the President was unconstitutional. Related cases reinforced restrictions on the executive branch.
After that, though, the Court upheld every delegation of power that came its way.
Why the opposition to “New Deal” delegations? Some say that some Roosevelt era laws were sloppily or hastily written. More likely, several Justices were conservatives who used the Court to kill laws that were inconsistent with their minimal government beliefs. When the cases involved international matters, they almost always refused to restrict legislative delegation of power.
The President’s power today couldn’t have been imagined by the authors of the Constitution. In fact, they weren’t very clear about what the executive branch should look like. They did fear executive tyranny and have faith in legislative bodies. But they had experienced a weak central government. Thus, Article II was supposed to give the President enough authority to deal effectively with national problems — without overwhelming the other two branches.
Unfortunately, the Article II language was vague. It said that the President should “faithfully execute” laws. But it made the executive commander-in chief of the military, and empowered the President to appoint numerous officials, grant pardons and reprieves, make treaties, and perform many duties connected with Congressional functions. What it did not do was define clear limits, which opened the door to a vast expansion of presidential power. It all depended on the character of the person who won the job. Whoever that was, however, the assumption was that they would share power with the other two branches.
Yet here we are, with a neutered Congress, hoping that courts can still impose some limits. The problem is that the Supreme Court has done more to expand than limit presidential power. In fact, it has granted powers to the President that aren’t conferred by laws or even mentioned in the Constitution. In a few cases, it has restrained executive power. But mostly it has rationalized presidential pretensions — especially during “emergencies.” At such times, the Court has been reluctant to interfere, except in cases of extreme abuse of authority. Many legal scholars say that is happening, but the Supreme Court recently ruled that the President is immune from prosecution for any official acts.
In Mississippi v. Johnson, a case emerging during a post-Civil War struggle between President Johnson and Congress about reconstruction, the Court clearly stated that the judiciary could not control the acts of the President. Johnson favored moderation while Radical Republicans wanted strict military control of rebel states. The Court’s decision was a compromise, sidestepping a potential constitutional crisis.
Article II gave the President enormous influence over domestic affairs through the power to appoint public officials. But questions about removal were left unanswered. In 1926, the Supreme Court did weigh in, apparently giving the President unlimited power to remove government personnel — except for federal judges. Still, it provided no definition of who is a purely executive official, which allowed the Court to decide about removal on a case-by-case basis.
The case, Myers v. United States, was controversial. Despite the main thrust, it indicated that executive power — even in an emergency — could still be subject to judicial control. Unless, of course, the President decided to defy the third branch of government. Recent statements by the President, Vice President, and various officials raise that prospect.
For example, a US district court judge recently issued an injunction stopping Elon Musk’s “department of government efficiency” (Doge) from accessing the Treasury Department’s central payment system in search of alleged corruption and waste. In response, Vice President J.D. Vance, a Yale Law School grad, said that judges who issue rulings that attempt to block some of Donald Trump’s executive orders “aren’t allowed” to control the president’s “legitimate power.” A showdown in the Supreme Court is likely.
In foreign affairs, primarily the responsibility of the President and Department of State, some power is nevertheless supposed to be shared with Congress. Treaty ratification requires approval by two-thirds of the Senate. A simple majority is enough for appointment of diplomats. But the growth of presidential authority over war and foreign relations was inevitable.
In connection with the Korean and Vietnam wars, Congress delegated much of its power, despite doubts that this was constitutional. And Presidents have used executive agreements rather than treaties to make international deals. These don’t require Senate approval, and the Supreme Court has said that they have the same legal effect.
Two centuries after the US constitutional system was created, it has gradually unraveled under the explosive force of the imperial presidency. The framers, though they could not predict the global dominance of the US, were certainly aware of the danger — a drift toward monarchy. Unfortunately, their 18th century solution no longer makes sense.
A different approach is needed again. Even if Trump’s monarchical power grab fails, Presidents will continue to seek more power until clear limits are imposed and public pressure reverses the long-term trend. In the end, the US may need another Constitutional Convention. Given the way things are going, any risks may turn out to be preferable to the inexorable drift toward tyranny.
But a Convention may not be practical at the moment. On the other hand, states did empower the federal government and ratify the current constitutional system. It’s time now for them and regional pacts to act, asserting their sovereignty by challenging or nullifying illegitimate presidential actions. What America needs is a radical devolution, a grassroots movement that restores the balance between federal, state and local power.
As Thomas Jefferson explained in reaction to the repressive Sedition Act, federal power isn’t unlimited. When it goes too far, he argued, it need not be obeyed. States have the right to decide how to handle federal overreach. In fact, they are obligated, as Jefferson wrote, to stop the “progress of evil” and maintain their “authorities, rights and liberties.”
Let the devolution begin.
