The founding fathers of the United States were terrified to prevent a new monarchy. The president, however, is becoming increasingly powerful, also because of the Supreme Court rulings. If Trump wins the election on November 5, will we be dealing with some kind of king?
On May 25, 1787, 55 delegates from twelve of the thirteen American states met in the State House in Philadelphia, the largest city in the country, for secret deliberations under the chairmanship of General George Washington. Their goal: to write a new constitution, since the original Articles of Confederation had proven to be useless. In 1777, their authors had still considered any concentration of power in an executive branch to be a threat to freedom. Now, ten years later, a narrowly won War of Independence and a rebellion by small farmers in Massachusetts, the delegates have decided to introduce the office of president.
But the primal fear of concentration of power remained. The founding fathers therefore banished the president to Article II. Article I was reserved for Congress, the representative of the people. And they established a system of checks and balances, as suggested by the French political theorist Baron de Montesquieu in his 1750 treatise “The Spirit of the Laws,” to prevent the dominance of one government body.
Except for pardons, the president had to share all rights with parliament: he could only appoint ministers, ambassadors and federal judges with the approval of the Senate. He was commander-in-chief of the armed forces, but only Congress could declare war. He could negotiate international treaties, but required a two-thirds majority in the Senate before they could be ratified. He could veto bills, which both chambers could, however, reject.
Power surge under Roosevelt
For the longest time, this arrangement worked as intended. Although the first 140 years saw repeated strong presidents such as Washington, Andrew Jackson, Abraham Lincoln, and Theodore Roosevelt, Congress remained the dominant force in the government system.
That changed with Franklin D. Roosevelt in 1933, when the fight against the worst economic crisis in the country’s history, the Great Depression, and the entry into World War II gave the office an enormous boost in power. With “FDR” the “modern presidency” began, in which the White House massively expanded its responsibilities in domestic and, above all, foreign policy, took the initiative in the legislative process and created its own apparatus independent of the ministries.
Donald Trump has no democratic fiber in his body; he uses the word “dictator” with undisguised respect.
Modern presidents transcend the Constitution by leading forcefully. FDR’s successor Harry Truman, fully aware of his power, put a sign on his desk with the phrase “The buck stops here!” Lyndon Johnson and Richard Nixon sent troops to Vietnam without a parliamentary declaration of war. The historian Arthur Schlesinger therefore spoke of an “imperial presidency.” Congress did indeed fight to regain some powers in the 1970s. But the trend toward a strong executive was only undermined, not broken.
Since then, three megatrends have driven the concentration of power in the president’s hands to new heights: fear of terrorism, party-political polarization and rulings by the Supreme Court. After the Islamist attacks on New York and Washington in 2001, which left almost 3,000 people dead, Congress granted the president extensive powers that are still in effect today: detaining enemy fighters in Guantánamo without trial, forcibly eliminating terrorists and militarily attacking organizations and countries that support them, monitoring telephone and internet traffic of terror suspects in the country without a court order.
Party-political polarization
George Bush Jr., Barack Obama, Donald Trump and Joe Biden used these new powers and defended them staunchly. All four used them to kill IS leaders in Afghanistan, Iraq, Yemen and Somalia and spy on tens of thousands of Americans. At the same time, presidents, under the impression of 9/11, the financial collapse and the Covid pandemic, increasingly declared national emergencies to achieve their political goals. By 2023, no fewer than 135 such decrees were in force. Obama used them to freeze foreign assets, Trump raised money to build his wall and Biden imposed sanctions on Russia.
Another development that strengthens presidents is party-political polarization. This has fundamentally changed the American system of government since the 1990s. Congress no longer sees itself as a collective counterweight to the executive branch, but rather, depending on the majority, as an agent or saboteur of the White House.
The result: If a president has a majority in both chambers of parliament, he can now push through almost anything: tax cuts for the rich, subsidies for climate protection, partisan judges. If he lacks the majority, he increasingly governs with directives that bypass Congress: Trump, for example, used this method to ban citizens from seven Muslim countries from entering the country and canceled a whole series of Obama’s environmental protection decrees. Biden ordered a mask requirement on federal territory during Corona and stopped Trump from building the wall. And both used Section 301 of the Trade Act to impose punitive tariffs on China.
The Supreme Court is also becoming more and more president-friendly. Since staunch conservatives have been in the majority there, they have not only enforced preferences on issues such as campaign donations, gun ownership, or abortion. They are also systematically pushing back restrictions on presidential power. In doing so, they follow the theory of the “unitary executive,” which grants the president absolute control over the government apparatus – without interference from parliament or the courts.
In 2018, they gave him the authority to ban people from entering the United States if he considers their home countries to be a security risk. In 2020, they allowed him to fire heads of independent agencies without cause. And recently, on July 1, 2024, the Supreme Court, with its right-wing six-to-three majority, announced that former presidents enjoy absolute immunity from prosecution for official acts in office – for life. “Unlike all other citizens,” argued the Court’s chief justice, John Roberts, “the president is part of the government, and the Constitution grants him broad powers and duties.”
Fundamental state restructuring
Far-reaching powers – that’s exactly what Trump wants. After returning to the White House, he plans to drastically expand his powers. As early as July 2019, he claimed that Article II gave him “the right to do whatever I want as president.” In April 2020, before a meeting with the governors of the fifty individual states, he said: “When someone is the president of the United States, they have total authority. And that’s how it has to be. It’s total.”
Although constitutional lawyers unanimously disagree, his ideological acolytes are already preparing corresponding measures. Their “Project 2025” wants to end the independence of the Justice Department and independent authorities such as the Central Bank, the Federal Communications Commission or the Federal Trade Commission, paralyze programs funded by Congress and fire tens of thousands of recalcitrant career civil servants. Many Trumpists celebrate Hungary’s authoritarian Prime Minister Viktor Orban as a role model.
Such a restructuring of the state would fundamentally change the character of the USA. After the immunity ruling, the progressive Supreme Court Justice Sonia Sotomayor saw the separation of powers undermined in a dissenting opinion: “In every exercise of official power, the President is now a king who stands above the law.” Debra Perlin of the left-liberal American Constitutional Society had previously warned: “When a President has seemingly unlimited powers, the only thing holding him back is the norms of the office and his own personal responsibility.” This is precisely what the founding fathers of the Republic never wanted to have to rely on.
Even in normal times, these would be worrying developments. However, they become even more dramatic with the prospect of a Trump election victory on November 5. After Biden’s debate debacle at the end of June, this danger is more real than ever. Trump has no democratic fiber in his body, he uses the word “dictator” with undisguised respect and announces purges in the bureaucracy and retaliation against political opponents.
Even the last hurdle to limit the president’s power could fall if he returns to the White House: the two-term limit introduced in 1952 by the 22nd Amendment to the Constitution. In a speech to the NRA gun lobby last May, Trump asked whether he should serve two or three terms after his election victory. It seemed to be rhetorical.
Stephan Bierling teaches international politics at the University of Regensburg. His new book “The Ununited States. The political system of the USA and the future of democracy” will be published in September by C. H. Beck.