The power of the president has morphed from a restrained executive with limited power to an imperial king wielding nearly unlimited authority — not by coup but through the slow, steady creep of precedent.
When talking about precedent, it’s usually in the context of the judiciary. Over the decades, court precedents have gradually eroded constitutional limits on federal power. One judicial opinion slightly expands government power, and then the next court comes along and builds on that precedent — each court opinion compounding the previous one.
Equally insidious is the rise of executive precedent. Each successive administration claims a little bit more power, laying the groundwork for the next president to use and expand it in a never-ending ratcheting up of executive overreach.
THE DANGER OF PRECEDENT
As Tenth Amendment Center founder and executive director Michael Boldin put it, yesterday’s crimes are used to justify tomorrow’s tyranny.
James Otis Jr. warned that a free government rarely degenerates into tyranny all at once.
“It is the work of years.”
St. George Tucker reiterated this point in his 1803 View of the Constitution of the United States.
“Slight, and sometimes even imperceptible, innovations, occasional usurpations, founded upon the pretended emergency of the occasion: or upon former unconstitutional precedents”
And then, “The most unauthorized acts of government may be drawn into precedents to justify other unwarrantable usurpations.”
This is exactly how things have played out — president after president.
These precedents should serve as a warning. Instead, as Patrick Henry lamented, they become fuel for ever-expanding federal power.
“In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.”
FROM PRESIDENT TO KING
The Constitution deliberately separated legislative and executive power. Put simply, the president should not make policy. His job is to enforce laws passed by Congress and execute programs it authorizes within the parameters it sets.
James Madison put it this way:
“The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must pre-suppose the existence of the laws to be executed.”
Over the decades, Congress has abdicated its responsibility to craft precisely worded laws. Instead, it often passes open-ended mandates allowing the president and executive departments to essentially “fill in the blanks.” This effectively turned the executive into a lawmaker.
Making matters worse, president after president simply usurped power. Remember President Obama with his “pen and his phone?”
This trend didn’t start with Donald Trump or Joe Biden. We can trace this congressional malfeasance and executive usurpation far back in history to Franklin D. Roosevelt, Woodrow Wilson, Abraham Lincoln — and even as far back as John Adams.
Every unconstitutional transfer of power from the legislative to the executive set the stage for the next transfers of power, making each successive administration more powerful than the last. (You can add to this the fact that the federal government isn’t even constitutionally supposed to be involved in the vast majority of things it is involved with today – but that’s a different discussion.)
Over time, past unconstitutional actions fade into the fog of history and become accepted as the norm. What began as a constitutional republic with the legislature (the people’s representatives) as the most dominant branch has morphed into an elected monarchy.
Today, we’re basically ruled over by an elected king.
The point is, Donald Trump couldn’t wield the power he has today if Biden hadn’t been allowed to usurp power. And Biden wouldn’t have been able to do what he did to the extent that he did if Trump 1.0 hadn’t usurped power. And Trump 1.0 built on power usurped by the Obama administration, Obama built on Bush, and on and on it goes.
Here’s just one example — DOGE was created by expanding an executive order issued by Obama. Almost everything Trump is doing today can be plausibly justified by precedents and executive orders set by prior presidents. Of course, none of it is justified.
The root of the problem is what I like to call partisan hackery. People are perfectly fine with presidential power grabs when it’s “their guy.” They look the other way — or worse, defend it — because they like the policy or think it’s “necessary.” But sooner or later, a “bad guy” shows up to use that same power (and expand it) for things they oppose. Then they start whining about “constitutional limits.”
Sorry, I don’t have much sympathy.
Because it’s not really about constitutional limits.
It’s about advancing a political agenda.
For somebody who actually believes in limiting government power, it’s pretty mind-numbing. It’s amazing how many people who were my “political allies” a year ago now tell me to shut up about constitutional limits because we have to “get the left.”
George Washington warned us about this.
“The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.”
Those who lament Trump’s exercise of power should remember that he wouldn’t be such a problem if the people hadn’t allowed the power to exist to begin with. And those celebrating Trump’s use of power should consider history and recognize that, in all likelihood, this power will be turned against them in the future.
