The defining doctrinal innovation of the second Trump administration has been to take the Supreme Court at its word. In recent years, the Court has embraced an extremely broad view of the President’s “exclusive” powers that cannot be regulated by Congress. The Trump administration is now showing what it might mean to take the Court’s statements literally.
The second Trump administration has exercised executive power in ways unparalleled in modern history. But one can understand the administration’s actions as an exercise in taking the Court’s recent separation of powers jurisprudence at face value. The Court has recently suggested that the President’s power to control law execution is exclusive. On the Court’s formalist premises, the entailment of this claim of exclusivity would be a regime where Congress cannot interfere with the President’s control of law execution. If this were true, then Congress would not, in fact, have power to create and structure executive branch offices and departments as it sees fit. It could not impose limitations on hiring or firing any executive branch officers or employees. It could not require the executive branch to adhere to standard requirements of administrative law. All these congressional actions interfere with the President’s control of law execution and would thus seem unconstitutional if the President’s power over law execution were truly exclusive.
I do not think the Roberts Court ever planned, or even considered, taking its own separation of powers doctrine quite this far. But, while the regime of full executive control that the Trump administration is striving to create might be beyond what the Court foresaw, it is not necessarily beyond what it said. Time will tell how the Court responds.
In this Essay, I will first explain how we got here, doctrinally speaking. I then propose two potential doctrinal responses. The first would be to abandon the formalist method that got us here. The second would accept arguendo that formalist “exclusive” powers are here to stay, but propose a regime of law — “Presidential Law” — that binds the President even when he exercises ostensibly “exclusive” authorities.
How We Got Here
To step back, the Roberts Court has been famously formalist in its separation of powers jurisprudence. At a basic level, contemporary separation of powers formalism entails a preference for rules over standards in resolving disputes between Congress and the President and an ostensible commitment to deriving the content of those rules from originalist methods. (In theory, one could create a different formalist method divorced from originalism, but that has not been the prevailing approach.)
As a foundational matter, formalists tend to view the separation of powers in the Constitution as allocating distinct bundles of power to each branch. The President gets the “executive” power, Congress gets the “legislative” power, and the judiciary gets the “judicial” power. Under the standard formalist conception, these grants of power are presumed to be “exclusive,” meaning that if one branch has exclusive power to do something, by definition, no other branch does.
This conception leads to a straightforward method of resolving conflicts between the branches: identify which branch possesses exclusive power over the matter at issue. In one easy step, this resolves the dispute, because it tells you both which branch has power to act and which does not. (As I have argued elsewhere, this method ultimately breaks down because even formalists concede that exclusive powers sometimes overlap, but I will set that aside for now.)
In principle, this method of resolving separation of powers disputes by finding which branch has exclusive power ought to have no a priori preference for the President or Congress. In practice, however, the Court has tended to favor the President over Congress in resolving recent separation of powers disputes. And, because the Court is operating within this formalist framework, picking the President over Congress requires finding the President’s power is “exclusive,” which entails concluding that Congress has no power over the relevant matter.
Interestingly, the Roberts Court has done this through an inversion of the famous framework set forth in Justice Robert Jackson’s Youngstown concurrence. Where Jackson’s framework was meant to be pragmatic in its reasoning and pro-congressional, the Roberts Court has used it in a manner that is formalist in reasoning and pro-presidential.
To be fair to the current Court, some of Jackson’s language enabled this move. In describing Category Three — the President’s “lowest ebb” of power and the only category where the branches come into conflict — Jackson stated that the President can prevail only if his power is “exclusive,” “conclusive and preclusive,” which “disabl[es] the Congress from acting upon the subject.”
Jackson clearly wished to discourage instances where the President would prevail in the “lowest ebb,” but his reliance on “exclusive” powers as permitting the President to win was ripe for, and arguably invited, formalist application. Under the test set forth in Category Three, for the President to prevail, the Court must find the President’s power is “exclusive,” thereby “disabling the Congress from acting upon the subject.” This is precisely what the Court has done: deem the President’s power “exclusive,” rendering his conduct immune from congressional interference.
Take the last three major separation of powers conflicts decided by the Court.
In Zivotofsky v. Kerry, the Court considered a statute providing that American citizens born in Jerusalem could designate the place of birth on their passport as “Jerusalem, Israel,” in contravention of the then-prevailing presidential decision not to recognize Jerusalem as part of any state. This presented a conflict between the President’s power to recognize foreign states and Congress’s power to regulate passports.
Under Jackson’s Youngstown framework, to find that the President could prevail, the Court had to find the President’s power was “exclusive.” This is exactly what it did (despite a dearth of evidence supporting this view). Such exclusivity meant that Congress was “disabl[ed] from acting upon the subject.” Thus, while the Court did not “question the power of Congress to enact passport legislation of wide scope,” it concluded that such power could not interfere with the President’s purportedly exclusive power over recognition. (Notably, the majority opinion was written by Justice Kennedy, with Justices Roberts and Scalia dissenting, but the Court’s conservatives later embraced the holding in Trump v. United States.)
The same dynamic can be seen in Seila Law LLC v. Consumer Finance Protection Bureau. At issue there was whether Congress could impose for-cause removal protections on the Director of the Consumer Finance Protection Bureau. This involved a conflict between the President’s power over removal and Congress’s power to structure offices.
Again, under the formalist conception, for the President to prevail, the Court had to find his power was exclusive. This is effectively what it did. The Court claimed that “the ‘executive Power’ — all of it — is ‘vested in a President,” and therefore the President possesses an “unrestricted removal power,” which could not be regulated by Congress. (The Court noted two exceptions to the President’s “unrestricted removal power,” largely based on stare decisis grounds, but never explained how to reconcile the existence of any exceptions with the notion that the President is solely in charge of removal.)
The apotheosis of the exclusive powers view is encapsulated in last summer’s decision in Trump v. United States. This case involved a conflict between the President’s power to engage in purportedly “official acts,” and Congress’s power to criminalize conduct. Again, the Court found that in areas of “exclusive” presidential power, Congress is “disabl[ed] . . . from acting upon the subject,” rendering the President absolutely immune from criminal liability: “[A]n Act of Congress — either a specific one targeted at the President or a generally applicable one — may not criminalize the President’s actions within his exclusive constitutional power.”
Consistent with its decision in Seila Law, the Court declared that “the Constitution vests the entirety of the executive power in the President” and, therefore, that Trump’s threatened removal of the Acting Attorney General likely implicated his “‘conclusive and preclusive’ presidential authority,” rendering him absolutely immune from congressional interference on this ground.
Taking Seila Law and Trump together, the Court’s view seems to be that the President has “exclusive” power to control execution of the law. The Court stated in Seila Law that “the ‘executive Power’ — all of it — is ‘vested in a President,” and, in Trump, that “the Constitution vests the entirety of the executive power in the President.” Although neither opinion fully defines the bounds of what falls in and out of the President’s “exclusive” or “conclusive and preclusive” powers, one straightforward reading is that the Court views the President’s power over law execution as “exclusive.” This is, after all, what Justice Scalia stated in his famous dissent in Morrison v. Olson: that the President must have “exclusive control over the exercise” of the “executive power.”
If this were correct, then, on the Court’s view, Congress would be “disabl[ed] from acting upon the subject,” and thus have no power to interfere with the President’s control of law execution.
By now, this claim might sound familiar. But it cannot be true. This is because even formalists accept that Congress has power to affect the President’s control over law execution in routine and foundational ways.
No one contests that Congress has the power to create the offices and departments that make up the executive branch. In doing so, it has power to give defined subject matters to some officers or departments and not others. Congress has chosen to place foreign affairs in the State Department and military policy within the Department of Defense. Congress has chosen to give some powers to the Attorney General and others to the Secretary of Commerce. These decisions by Congress about how to structure the executive branch — by creating principal and inferior offices and departments and granting them specific powers as it sees fit — quite obviously interfere with the President’s control over law execution. Congress is telling the President which officers are in charge of what and which departments they sit in. This is hardly a system where the President is exclusively in charge of how to execute the law.
Beyond its role in creating and structuring the executive branch, Congress also controls how executive branch actors execute the law. This is the domain of administrative law, pursuant to which Congress has imposed myriad procedural requirements on law execution. Famously, Congress requires notice and comment procedures for informal rulemaking, on the record procedures for formal adjudications, and so on. An essential premise of the field of administrative law is that Congress has power to tell executive officials how to execute the law. This is facially inconsistent with the claim that the President alone is in charge of law execution.
The contradiction is plain: The Court suggests that the President’s power over law execution is exclusive, which “disabl[es] the Congress from acting upon the subject,” while accepting that Congress has power to control law execution in innumerable ways. Both cannot be true.
In prior work, I have argued that this contradiction is merely one example of formalism’s inability to coherently resolve separation of powers disputes in areas of overlapping power. I argued that this inconsistency reveals a sufficiently serious flaw in the formalist method that it ought to be abandoned.
But I suppose there was always a way to resolve this inconsistency. If one were willing to take the Court’s claim that the President has exclusive control over law execution to its logical conclusion, one could simply conclude that Congress does not, in fact, have power to create and structure the executive branch, or impose administrative law requirements, or enact limitations on the hiring and firing of executive officials. I did not think, however, that even the most conservative members of the Court ever considered taking their claims this far.
Where We Are
Enter the second administration of President Donald J. Trump. The administration’s actions — and many of its legal claims — seem to be simply taking the Court at its word.
If the President’s power over law execution were truly “exclusive,” such that only the President possesses it and Congress is “disabled from acting upon the subject,” then the President could hire and fire whomever he wants — be they a principal officer, an inferior officer, or a civil servant. If the President’s power over law execution were truly exclusive, then perhaps he could freeze federal funding across the board or change indirect cost rates for health grants, if he determined doing so was necessary to faithfully execute the law. If the President’s power over law execution were truly exclusive, then the President could dissolve agencies, like USAID or the Department of Education, and structure the executive branch as he sees fit.
In other words, there is no question that the Trump administration’s actions are unprecedented. But they can be doctrinally reinforced by the Court’s own statements. Thus, while I doubt the Court ever meant to take its logic this far, its formalist method’s reliance on “exclusive powers” has enabled many of the administration’s doctrinal claims.
So, what now? In my view, there are at least two potential doctrinal paths worth considering in response. (There are surely other potential doctrinal responses, and, in case it does not go without saying, this Essay is focused on doctrinal — rather than political — explanations and responses.)
Response One: Abandoning Formalism
The first option is to fight the premise. This strategy would encourage the court to abandon separation of powers formalism. The reason is simple: Formalism has never developed a coherent method to resolve disputes that arise in areas of overlapping power, which is where essentially all modern disputes occur.
This includes conflicts over for-cause removal protection, which arise in an area where the President’s power to remove officers and Congress’s power to structure offices overlap; the dispute in Zivotofsky, which arose in an area where the President’s power over foreign state recognition and Congress’s power to regulate passports overlap; and the issues in Trump v. United States, which arose in an area where the President’s power to engage in official acts and Congress’s power to criminalize conduct overlap.
Formalism has never developed a consistent rule that explains which branch to prioritize when disputes arise in such areas of overlapping authority. Indeed, Justice Thomas implicitly conceded this in his concurrence in Zivotofsky when he stated that how “the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution” is a “difficult separation-of-powers question” that “I need not opine on.” The reason the question is “difficult” for separation of powers formalism is that there is no originalist rule of prioritization for such cases. The Constitution simply never tells us which branch to prefer in disputes that arise in areas of overlapping power.
Instead of acknowledging this lacuna, formalists have tended to arbitrarily pick one side (usually the President) and say that it has exclusive power over the matter, effectively denying there is an overlap in the first place. This has led to a series of arbitrary rules that cannot be reconciled — a separation of powers doctrine that simply does not cohere.
In this world, the claim that the President is the only branch with any authority over law execution lives alongside claims that Congress can create and structure the executive branch, confirm who staffs it, and impose procedural obligations on how executive branch officials execute the law. But these claims cannot all be true.
The better way to understand disputes in this area (and others) is that both branches have power to act and have come into conflict. The President has power to control law execution, Congress has the power to create and structure the executive branch. The branches share power in this domain. Their powers are not exclusive in the sense that only one branch has any power over a given domain.
To be clear, resolving disputes that arise in areas of shared power is a genuinely difficult enterprise. But we know that separation of powers formalism is not up to the task.
What should take its place is an open question. I have proposed a noncategorical “interest balancing” approach to resolve such conflicts. Under this approach, when the branches come into conflict in an area of shared authority, interpreters would ask whether one branch’s exercise of power “interferes with” or “infringes upon” the other branch’s exercise of power, and, if so, whether such interference is justified by a sufficiently strong interest. This is the traditional method of resolving infringements in the constitutional rights domain and can work for the separation of powers as well.
Of course, this method is not perfect. But it is much better suited to the disputes that actually arise today than separation of powers formalism. And, if people are reluctant to embrace interest balancing, there are other options to explore as well.
Whatever ought to replace formalism, this strategy would focus on getting the Court to abandon the formalist method, because formalism cannot coherently resolve the separation of powers disputes that arise today, and it has enabled claims of essentially boundless substantive authority for the President.
Response Two: The Presidential Law Approach
The second potential doctrinal response would accept arguendo that the Court is committed to its conception of broad presidential “exclusive” powers, and ask what follows from this. This strategy would accept either that the Court is willing to take its claims about “exclusive” powers to their logical conclusion, or that the Court is, at least, not willing to renounce its claims to expansive “exclusive” powers just yet.
Would this mean that the President is completely unconstrained? On a standard view, when the President exercises “exclusive” power, there are no limits on what he can do. His power is, in effect, lawless.
The “Presidential Law” response firmly reject this claim. This is because Article II imposes procedural obligations on how the President exercises power, even so-called “exclusive” power. Thus, even if Congress is held to lack power to impose procedural requirements on the President via Article I, there remain procedural requirements imposed directly on the President by Article II. The President’s “exclusive” powers are not lawless.
I previously articulated some of the legal obligations that attach to exercises of presidential power, which form a body of law that I have called “Presidential Law.” The term was meant to mirror “administrative law,” a body of largely procedural law that binds executive agencies pursuant to the Administrative Procedure Act. As an analogue, presidential law refers to a body of largely procedural law that applies directly to the President under Article II. Procedural obligations under this body of law include requirements of:
- Proper Motivation — The President must be motivated by the public interest, not their own private interest;
- Honesty — The President must honestly believe any predicate conditions are met that enable an exercise of power;
- Deliberation — The President must deliberate — that is, gather relevant information and make a considered judgment — before exercising power.
These procedural obligations are derived from conventional sources of constitutional interpretation, including the text of the Constitution — in particular the duty of “faithful” execution — a long history of internal executive branch legal opinions, as well as Supreme Court precedent.
To be sure, the Supreme Court has never laid out these obligations in so many words. But these obligations are implicit in the Supreme Court’s decisions in various domains, including in cases relating to the nondelegation doctrine, the presumption of regularity, executive privilege, deference to the President’s foreign affairs powers, and elsewhere.
One sees this even in unlikely places. Take, for example, the Court’s tepid review of President Trump’s so-called “Travel Ban” in Trump v. Hawaii. Although the Court was obviously deferential in its review, it upheld the President’s relevant “finding” only in the third iteration of the directive, taking pains to repeatedly emphasize the “worldwide,” “multi-agency review” that preceded it. I do not believe the Court would have upheld the order if the Trump administration had stated that it had, in fact, made the decision to ban citizens of various countries arbitrarily — without gathering or considering any relevant information.
The point is that even if we end up in a world of full executive power, where Congress cannot constrain the President, the Constitution is not silent. Article II imposes procedural requirements directly on the President that apply even when the President exercises so-called “exclusive” powers. This is the core insight of the presidential law approach.
Moreover, while these obligations are relatively modest, they have bite. Consider the National Institute of Health’s abrupt imposition of an across-the-board fifteen percent cap on indirect costs. It seems likely that the administration did not gather relevant information and consider the impacts of this decision. It thus violated the duty to deliberate. Or take the blanket firing of probationary employees ostensibly for poor performance, when no such poor performance took place. This appears to have violated the duty of honesty and deliberation.
To be clear, presidential law’s requirements are not as stringent (or highly reticulated) as those of administrative law. And I am wary of overly procedurally burdening the President on the basis of constitutional interpretation. At the same time, beyond procedural review, some statutes with objectively-phrased triggering conditions might require some substantive review. There is thus still further work to be done on what concretely is required of the President on this view, and how such requirements ought to be externally enforced. But the requirements of presidential law strike me as fairly minimal, while not nugatory. The field thus has the potential to bind, but not too much.
Would the Court ever adopt this approach? There is reason to think it might. If the current Court is not willing to renounce its formalist method, it might be looking for ways to impose legal limits on the President and his administration nonetheless. If the substantive scope of the President’s power is essentially limitless, procedural limits might seem quite appealing. While the Court has historically been wary of engaging in close review of presidential motive and directives, it might be willing to recognize a flexible set of procedural obligations on the President’s conduct that derive from presidential law. It might also look to important work in this space by David Driesen, Andrew Kent, Ethan Lieb, and Jed Shugerman, Lisa Manheim and Kathryn Watts, Gillian Metzger, Daphna Renan, Kevin Stack, Kate Shaw, and others.
The key point is this: Even when the President exercises exclusive power, he is under legal obligations. There is a body of procedural law that binds the President. Even in an era of exclusive powers, the President’s power is not lawless.
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In sum, the Trump Administration’s unprecedented actions can be understood as a literal application of the Supreme Court’s own logic. This has led to a dramatic and unsettling landscape of broad exclusive power that prevents Congress from regulating the President. This is a world that the Court likely did not foresee, but that it did enable.
There are at least two ways the Court might respond. First, it could abandon the formalist method that got us here — and hopefully adopt an interest balancing approach in its stead. Second, it could maintain its embrace of formalism, while enforcing procedural limits grounded in presidential law that attach even in a world of exclusive powers.
Personally, I am hoping for the former. But the latter would be better than nothing. And, at this point, that might be the most we can ask for.
Shalev Gad Roisman is an Associate Professor of Law and Distinguished Early Career Scholar at the University of Arizona James E. Rogers College of Law. You can reach him at sroisman@arizona.edu.
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