Our system of checks and balances is completely out of whack – which is unacceptable because separation of powers is fundamental to both our democracy and rule of law. The U.S. Constitution is clear: The Legislative Branch (Article 1), the Executive Branch (Article 2), and the Judicial Branch (Article 3) each have separate and independent powers, and each branch is given equal weight. There is ZERO wiggle room in this.

Except that’s not how it’s playing out. We have a power-hungry executive branch that is spinning out of control and a Congress that just sits there like lap dogs and allows it to happen.

Although President Trump pushed the limits of executive power to unfathomable levels in his first term – and is continuing his quest for total domination in his second – the Lone Wolf mentality of the Executive Branch has been inappropriately increasing for decades.

President Obama severely overreached when he paid for cost-sharing subsidies after the Affordable Care Act passed, while President Biden did when he tried to cancel billions of dollars in student loans – which both may have been nice gestures if they weren’t straight-up unconstitutional.

Within hours of his inauguration, President Joe Biden had signed fifteen executive orders and two additional actions to rescind Trump-era policies, including ones regarding immigration, the pandemic response, and climate change. Within sixteen days, Biden had signed three times the number of executive orders than past presidents had at the same point in their presidencies.

Among other things, Biden ended the bans on Muslim travel and transgender military service; revoked the abortion “global gag rule,” the 1776 Commission, and the permit for the Keystone XL pipeline; plus stopped construction on “The Wall.” He also rejoined the Paris Climate Agreement and reiterated U.S. support for the World Health Organization.

Now, of course, the pendulum has swung back the other way, and Donald Trump is back in the White House flooding the zone with executive orders like a bat out of hell.

On the first day of his second presidency, he signed twenty-six executive orders, including ones to roll back the Biden administration’s climate and environmental regulations; ending birthright citizenship in the U.S; withdrawing from the Paris climate agreement and the World Health Organization (again); recognizing two sexes; and revoking the security clearances of his former national security adviser, John Bolton, and any former intelligence officials who signed onto a letter saying the Hunter Biden laptop story was Russian disinformation (you know, the really important things a president should be doing on their first day).

By the sixth week of his second presidency, President Trump had signed over eighty executive orders and, also by the sixth week, over a hundred lawsuits had been filed to stop him. Plus, five former Treasury Secretaries had written an essay titled Our Democracy Is Under Siege and five former Secretaries of Defense had written a letter denouncing his “reckless” firings of the Joint Chiefs chairman and several other senior military officials.

This is an incredibly dangerous path we are on. We cannot be like that frog in the pot who, because the temperature is raised ever so slowly, doesn’t realize he is getting boiled to death until it’s too late. Please believe me, a United States without appropriate checks and balances is not somewhere you want to be. We need to get this back under control. Right now.

Executive orders were originally designed as a way for presidents to establish directives, communicate priorities, and provide guidance within the bounds of existing law. A great example of the true intention of the executive order is the very first one, issued in 1789 by President George Washington to those in charge of the federal departments.

In part, his order said: “I am desirous of employing myself in obtaining an acquaintance with the real situation of the several great Departments, at the period of my acceding to the administration of the general Government.”

“For this purpose, I wish to receive in writing such a clear account of the Department, at the head of which you have been for some years past, as may be sufficient (without overburdening or confusing the mind which has very many objects to claim its attention at the same instant) to impress me with a full, precise, and distinct general idea of the affairs of the United States, so far as they are comprehended.”

In other words, Washington used the executive order kind of like a management tool, which makes sense because the Vesting Clause of the U.S. Constitution says that “the executive power shall be vested in a President of the United States of America.” The Constitution also says that the president may “require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.”

President Trump is obviously testing, I think on purpose, the scope of the Vesting Clause, embracing a concept called the unitary executive theory. The unitary executive theory says that the President of the United States has sole authority over the executive branch.

In 2020, in the majority opinion for Trump v. Mazars, Supreme Court Chief Justice John Roberts wrote that the president is “the only person who alone composes a branch of government.” Many people are using his words as tea leaves to try to predict what the Supreme Court will do amid Donald Trump’s recent unprecedented power grabs.

… but the fact is, Justice Roberts’ words aren’t wrong. Those ten words are also not the issue, or the problem. The problem comes into play when the Executive Branch begins encroaching on the powers of the other two branches, and when the president doesn’t abide by the Take Care Clause, which says that he/she “shall take care that the laws be faithfully executed.” These are the issues facing the Supreme Court – and all the rest of us – today.

For example, President Trump has tried to fire, from the National Labor Relations Board, commissioners who have fixed terms. He can’t do that, at least as of now, thanks to the Supreme Court’s decision in Humphrey’s Executor v. United States (1935), which upheld that 1) a commissioner can only be removed for “inefficiency, neglect of duty, or malfeasance in office,” and 2) that the Constitution did not give “illimitable power of removal” to the President of the United States.

President Trump also fired at least seventeen inspectors general on January 24th, plus people from independent agencies like the Federal Trade Commission, the Federal Communications Commission, and the Federal Deposit Insurance Corporation.

We’ll see if the highest court changes its tune but, as of now, the Supreme Court found in the 1988 case of Morrison v. Olson that the independent counsel statute – which was adopted by Congress after Watergate – was constitutional. The Court found that the law and its protection of independent counsels from removal did not violate the separation of powers, effectively imposing some limitations on the president’s power to remove executive branch officials.

All that said – make no mistake – I absolutely believe Donald Trump is trying to be a king. Don’t believe me? Just ask him.

On February 19th, he posted this on Truth Social: “CONGESTION PRICING IS DEAD. Manhattan, and all of New York, is SAVED. LONG LIVE THE KING!” The White House posted the message on its Instagram and X accounts, along with a picture of Trump wearing a crown (good Lord). Four days before, he had posted the quote, “He who saves his Country does not violate any Law,” a quote largely attributed to Napoleon, a dictator who restricted freedom of speech, press, and women’s rights; re-imposed slavery; empowered a greedy nobility; stole elections; and literally crowned himself emperor.

After Donald exited the White House, one could be forgiven for thinking his decisions were a one-off made by a rookie president, or maybe they didn’t even know about them. But after the 2024 campaign, no one can say they didn’t know his intentions because he certainly wasn’t shy about telling the world exactly what they were.

On the 2024 campaign trail, for example, he said he would “use the president’s long-recognized Impoundment Power to squeeze the bloated federal bureaucracy for massive savings” – which basically meant he planned to refuse to spend money Congress has appropriated if he didn’t like what they appropriated it for. Never mind that, far from this being a “long-recognized” power, Congress severely limited this type of scheme during the Nixon administration.

But back to executive orders, which are being used as a substitute for having to build consensus in Congress to legislate. This approach is somewhat understandable given our two-party system has severely limited the ability to get things done, but the fact remains that the way executive orders are being used is straight-up unconstitutional.

It’s true that, since George Washington’s time, Congress has given the president a certain degree of additional discretionary power, but the Supreme Court has also ruled that every executive order must adhere to Article II and/or by statutes that Congress has already legislated. In other words, Congress still makes laws, not the president.

A great example of presidential overreach by executive order is President Lincoln’s Proclamation 95 (the Emancipation Proclamation). This 1862 executive order/presidential proclamation changed the legal status of over 3.5 million slaves. To me, this remains the single bravest, most noble and powerful action in American history. 

But since the Emancipation Proclamation essentially overturned the Fugitive Slave Act of 1850 – a law that forced slaves to be returned to their “owner” if captured – it fell outside Constitutional presidential action. No one knew the rules better than President Lincoln, so he quickly followed the Emancipation Proclamation up with a demand that southern states include abolition in their plans for Reconstruction, as well as a hard push for the passage of the Thirteenth Amendment – which finally ended slavery for good.

President Lincoln’s actions after the Emancipation Proclamation are the most instructive when it comes to executive orders. In their essence, executive orders are nothing more than theatre because they are temporary. They provide a way for presidents to look like they are doing something – and they may be for three or four years – but in the end they achieve nothing because they can simply be rescinded by the next president.

Imagine if President Lincoln had just stopped after he made his initial proclamation by executive order. Andrew Johnson was the next president. Andrew Johnson, one of the most hideous, racist presidents in American history. Andrew Johnson who opposed Reconstruction, the Civil Rights Act of 1866, and the Fourteenth Amendment. 

Imagine if Lincoln had just gotten lazy and simply left the freedom and protection of enslaved Americans to the fate of an executive order. Imagine if Andrew Johnson could have just repealed the Emancipation Proclamation?  …which under the rules he most certainly could have.

This is a perfect example of why the founding fathers thought it was worth the time and effort to actually pass legislation. It’s harder, no doubt. But it’s lasting.

Beyond the constitutionality of executive orders, one of the most damaging things they do is create chaos and uncertainty. Take DACA, for instance. The Deferred Action for Childhood Arrivals (DACA) is a policy that allowed kids who are not U.S. citizens but were brought here as children to receive a two-year period of deferred action from deportation. They also may have been eligible for a U.S. work permit.  President Obama established DACA through an Executive Branch memorandum on June 15, 2012.

The kids protected by DACA – also referred to as “Dreamers” – were ecstatic and started to make plans for their unencumbered future in the United States. That is, until five years later when Donald Trump announced plans to phase DACA out. Four years after that, President Biden issued an executive order reinstating DACA.

As of April 2025, U.S. district courts have determined that the DACA policy “is illegal.” However, people who obtained DACA on or before July 16, 2021 will still be protected and be able to renew their DACA and work authorization requests.

Although those who became Dreamers before July 16, 2021 are surely relieved they will continue to be protected, their lives are still subject to political whiplash – especially now that Donald Trump is back. Although the prevailing sentiment may favor them today, they continue to live in a perpetual state of limbo about tomorrow.

Make no mistake, the people who bear the most responsibility for allowing whoever is president – Democrat or Republican – to get away with this are members of the United States Congress, who should be ashamed of themselves. The most destructive consequence of an overly empowered Executive Branch is that, as the power of the presidency has grown, the power of Congress has equally diminished.

The U.S. Constitution, for example, gives Congress the power to protect civilian control of the military by setting forth congressional war powers (Article I, Section 8). This is critical not only to protect our rule of law, but also to ensure that we have solid national security objectives and a smart, thoughtful foreign policy strategy. Most importantly, our troops must be certain that the dangerous missions we ask them to engage in are fully warranted and vetted. 

But, for well over two decades, Congress has taken the coward’s way out, purposely avoiding tough votes on military action. For some insane reason, we have allowed our leaders to use a two-decades old congressional authorization – the longest-running authorization for the use of military force in U.S. history – to justify military actions that clearly fall outside the parameters of the original mandate. This violates the Constitution and deprives Americans the opportunity for vigorous debate and appropriate oversight.

This irresponsible inaction has given the U.S. president unlimited power to unilaterally make military decisions, which is unacceptable. And straight-up unconstitutional.

Another fundamental responsibility of the U.S. Congress is inquiry and oversight (Article I, Section 8). The Supreme Court has ruled on this in several different ways: In Watkins v. United States (1957): “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes.” And in Barenblatt v. United States (1959): The “scope of the power of inquiry is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” And in Trump v. Mazars USA: “Without information, Congress would be shooting in the dark, unable to legislate ‘wisely or effectively.’”

All of this was preceded by a 1938 judgement by the U.S. Court of Appeals for the District of Columbia Circuit which found “a legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.”

 However, even when Congress does decide to fulfil its inquiry and oversight obligations, the effort is jammed up by two major issues.

The first is the chronic claim of executive privilege. Among many, many other times in his first term, President Trump invoked executive privilege to try to block Congress from receiving the findings of the Report on the Investigation into Russian Interference in the 2016 Presidential Election (a.k.a. the Mueller report) and to block witnesses in the investigation from testifying before Congress. In other words, he invoked executive privilege to try to stop Congress from conducting its constitutionally mandated oversight responsibilities.

The term “executive privilege” is not even in the United States Constitution. The Supreme Court did finally address this in the 1974 Richard Nixon case, acknowledging “the president’s need for complete candor and objectivity from advisers.” However, in that instance the Court was speaking specifically to judicial subpoenas.

Do we need any more examples of a checks and balances system out of control? What the heck, let me give you just one more. Article I, Section 9, Clause 7 ​of the U.S. Constitution says: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” – meaning Congress, and Congress alone, has control of spending policy. The Constitution is pretty clear on this, right?

In the Federalist Papers: No. 58 (uh oh! I’m bringing out the big guns!), James Madison – the “Father of the Constitution” himself –called this the power of the purse, as in “this power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”

In his first term, President Trump tried to circumvent this mandate a thousand different ways, his favorite being declaring everything an “emergency.” The most obvious abuses in his first term were, naturally, tied to his beloved border wall and illegal immigration.

On February 15, 2019, he declared a “national emergency” at the U.S-Mexico border, giving him more authority to reallocate taxpayer money from other accounts to fund more than 230 miles of barriers along the U.S.-Mexico border. He also redirected millions and millions from the Federal Emergency Management Agency (FEMA).

Donald also unlawfully went around Congress when he – in now both of his terms – imposed tariffs on steel and aluminum imports by claiming Section 232 of the Trade Expansion Act of 1962, a provision that allows the U.S. president to bypass Congress and levy tariffs on the grounds of “national security.” In his second term, he also declared an “emergency” under the International Emergency Economic Powers Act of 1977 to impose tariffs on Canada, China and Mexico.

            His using either of these laws to impose tariffs is absurd. There was/is absolutely no national security threat that justifies his actions… which makes them flat unconstitutional. Article I, Section 8, Clause 3 of the United States Constitution (a.k.a. The Commerce Clause) says: “The Congress shall have power...To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

            It’s true that, under Article II, the president has the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.” However, that only means the president has the authority to negotiate treaties with the Senate’s approval.

Even with the expanded powers Congress has given the president over the years to enact tariff polices – there are currently six statutory provisions in place that control how the president and the executive branch can use tariffs – s/he DOES NOT have authority over international commerce and/or trade. But, because Congress has no backbone, voilà. We suddenly have completely made-up “national security” situations.

As egregiously, on his very first day back in office, he declared a “national emergency” because of our “precariously inadequate” energy supply, even though American oil and gas production is at record levels and gasoline prices are at their lowest in over three years.

This is all outrageous but, to be fair, this “emergency” play can get easily twisted because the 1976 National Emergencies Act – which significantly weakened Article 1, Section 9, Clause 7 – provides a framework for the president to declare a national emergency but doesn’t define what a national emergency actually is – an oversight that is a recipe for total disaster.

The Supreme Court has held that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Using that logic, Merriam-Webster defines “emergency” as an unforeseen combination of circumstances or the resulting state that calls for immediate action; applies to a sudden unforeseen situation requiring prompt action to avoid disaster. When you add “national” to the definition, they add: a state of emergency resulting from a danger or threat of danger to a nation from foreign or domestic sources.

The key word here is immediate. So, I’ll go out on a limb and say that something is not an official “emergency” if oil and gas production is at record levels and gasoline prices are at their lowest in years, or if your solution for the “emergency” will take 5+ years to construct (like, say, “The Wall”). Are there issues at the border that must be addressed? Absolutely. Are they “emergencies” as defined here? Absolutely not.