April 30, 2025

One of the more remarkable features of President Donald Trump’s ongoing, yet unfulfilled, effort in the first 100 days of his second term in office to transform American democracy into an autocracy is its ahistoric path, one that represents a radical departure from the work and vision of the Framers of the Constitution.

The Framers’ institutionalization and constitutional confinement of the presidency represented their response to the royal prerogative of the English Monarchy which, as James I declared, inhered in the king by virtue of his royalty and not his office. The American system of government was designed in part to overcome the personalization of executive power. In their replacement of personal rule with the rule of law, the Framers rejected the historical admiration of the executive and the claims of personal authority that, at least since the Middle Ages, in one form or another, had conceived of executive rights as innate; they were derived not from the office but, it could be said, from the “blood and bone of the man.” Executive power was personal, not juridical. For its part, the Constitutional Convention sought to transform personal rule into a matter of law and to subordinate the presidency to constitutional commands and prescriptions.

Trump’s extraordinary concentration of power in the presidency, grounded in his acts of usurpation and congressional abdication, has left in its wake a long list of casualties, including separation of powers, checks and balances, and enumeration of powers. Given his diminution of the constitutional restraints imposed on the president, what Thomas Jefferson lamented as the conversion of the Constitution into “a thing of wax,” it seems evident that in historical terms, the United States is marching steadily backward. After 100 days, this is the condition of the Trump Presidency: an overgrown office swollen with powers subject to few limitations. In fine, Trump admires the personalization of power that the Framers rejected. A citizen, therefore, cannot logically choose both the Trump theory of the presidency and that of the Framers.

At this juncture, we are allowed to wonder whether Congress will remain a viable institution or whether Trump’s practice of aggrandizing legislative power, as seen in his usurpation of fundamental congressional powers—lawmaking, appropriations, and appointment, for example—will continue without interruption, leading to the establishment of autocracy. The retreat and abdication of power and responsibility by the GOP majority in both houses of Congress has left the judiciary as the lone constitutional restraint on the Trump Presidency.

To date, federal courts have checked most of the 100 or so executive orders issued by Trump, but his defiance of court rulings, including the Supreme Court’s order that he “facilitate” the return of Kilmar Abrego Garcia from an El Salvador prison, raises the question of whether he will comply with a ruling by the highest court in the land. As the nation learned in Trump’s April 29 interview with ABC News, contrary to his previous claims that he was without power to retrieve the Maryland man illegally deported by the administration, he is, indeed, capable of securing the return of Garcia, but he “just doesn’t want to” do it. Trump’s admission of power to retrieve Garcia demonstrates a chilling willingness to remove from the United States those whom he dislikes, without due process of law.

Without the authority to enforce its rulings seeking to uphold the rule of law and constrain President Trump by the terms of the Constitution, it is not clear   whether the courts can hold the line in the face of his assertions of unbridled executive power. Congress, of course, has the authority to restrain illegal and unconstitutional presidential actions, but Trump has been able to seize power so brazenly only because the GOP majorities in both the House and Senate have lacked the courage and foresight to defend its constitutional position. Trump has embraced a conception of executive power that is at war with the aims and purposes of those who wrote the Constitution. Stephen Miller, Trump’s Deputy Chief of Staff for Policy, has articulated the Trump theory of the presidency. Because the “president is elected by the whole American people,” he embodies “the whole will of democracy,” and it is for him to impose that will on the government. We examine next week the implications of the Plebiscitary Presidency for American Constitutionalism.

– David Adler