Rethinking Conservative Approaches to Executive Power

In a recent Atlantic article, prominent conservative legal commentator Gregg Nunziata argues that conservatives should rethink their advocacy of sweeping executive power, and support tighter limits on presidential power:

The second Trump administration has revealed American Caesarism in nearly full bloom. Despite ambitions to fundamentally change the course of the country, this administration has no real legislative agenda. Instead, the president governs by executive orders, emergency decrees, and extortionate transactions, using his power to reward his friends and punish his enemies. He’s launched foreign military adventures and full-blown wars seemingly based on personal whim, and has made the military a political prop and a tool for domestic law enforcement. With Congress sidelined and the courts reluctant to check Donald Trump’s excesses, America has been left with what some legal scholars have described as an “executive unbound”—and with a president who threatens to supplant the republic in all but name….

The central premise of the Constitution is that liberty requires divided authority. The accumulation of power in one branch of government is, as James Madison warned, “the very definition of tyranny.” Americans are already feeling the consequences of this imbalance: Because executive orders, emergency declarations, and unilateral action lack the durability of legislation passed by Congress, policies swing wildly from one administration to the next. Families and businesses cannot plan ahead, which undermines investment, growth, and prosperity.

American Caesarism did not emerge overnight with the election of Trump, but over the course of decades. And though conservatives alone did not create this state of affairs, many were key proponents of a vision of politics centered on one commanding figure—a vision that is now destabilizing our country. I have spent my career in the conservative legal movement, which has included advising Senate Republicans on judicial nominations. I have become convinced that if the Madisonian republic is to endure, conservatives must reckon with our role in bringing the nation to its current breaking point, and work to reestablish the checks and balances that we helped erode.

I agree with most of Nunziata’s points, and certainly with his bottom-line conclusion that the conservative legal movement, the judiciary, and especially Congress should all do much more to constrain executive power.

I would extend Nunziata’s logic in several ways. First, as I have argued at length in various previous writings, the nondelegation and major questions doctrines pioneered by conservative judges and legal scholars can be valuable tools for constraining executive power, and they should be used more. We’ve already seen some beneficial effects of them in the tariff case recently decided by the Supreme Court. And there is much more potential there, for example when it comes to constraining dangerous presidential efforts to “nationalize” control over elections.

Second, I would amplify Nunziata’s calls for stronger judicial review of and congressional control over invocations of executive emergency powers. I previously wrote about that here and here. Courts should not defer to presidential assertions that an “invasion,” “unusual and extraordinary threat,” or other emergency justifying use of sweeping powers exists. They should demand proof. And Congress should impose time limits on emergency powers, and make clear that legal limitations on emergency powers are subject to nondeferential judicial review.

Third, even if “unitary executive” theory is otherwise sound, it should not be applied to the exercise of authority over issues that were not themselves within the original scope of federal authority. If we are not going to eliminate such unoriginalist expansions of federal power entirely, we should at least not allow concentration of that vast authority in the hands of one person.

I do have a few reservations about Nunziata’s analysis. I think he underrates the potential impact of the Supreme Court’s ruling in the tariff case (which I helped litigate). Nunziata is right that the Court based its decision primarily (thought not “solely,” as he put it) “on the determination that the emergency authority at issue does not authorize tariffs” and that the Court did not address Trump’s bogus invocation of a national emergency. But, as recounted in my Atlantic article about the case, all six justices in the majority emphasized that the president could not claim unlimited power to impose tariffs for any reason, and the three conservatives also ruled against Trump based on the major questions doctrine, thereby signaling their willingness to utilize against future power grabs on “foreign affairs” powers, including those by Republican presidents. Justice Gorsuch also emphasized nondelegation considerations.

I think Nunziata may also underrate the extent to which the Supreme Court’s rulings limiting judicial deference to executive agencies can be utilized to constrain the presidency. He notes that “the judiciary remains less willing to confront executive overreach outside of the regulatory context, especially in matters of purported national security.” This is true to an extent. But the logic of these decisions applies broadly to all assertions of executive power, and multiple federal judges – including conservative ones – have applied them in a nondeferential way in the tariff case, and in litigation over the president’s claims that illegal migration and drug smuggling qualify as “invasion.” On the other hand, it is also true that a few conservative judges have claimed the president deserves virtually absolute deference on the latter issue. I go over the relevant precedents and critique the case for deference in this article.

For me as a libertarian, it’s generally easy to oppose executive power grabs because – in addition to constitutional considerations  – I also oppose the vast bulk of them on moral and policy grounds. That’s true of Biden’s student loan forgiveness plan, Trump’s actions on immigration and tariffs, and more.

By contrast, executive power poses some difficult dilemmas for both left-liberals and conservatives. They may often welcome sweeping executive power when “their” guy is in the White House, hoping that he will use it for beneficial purposes, even as they fear its exercise when the shoe is on the other foot. To them I can only say that a massive concentration of power in the hands of one person is inherently dangerous, at odds with the constitutional design, and – as Gregg Nunziata explains – a serious potential menace to the republic. At the very least, these concerns should lead you to support tighter constraints on executive power than you might otherwise advocate.

NOTE: Gregg Nunziata is Executive Director of the Society for the Rule of Law. I am a member of SRL’s Advisory Council (an unpaid position).

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