We are in a constitutional crisis. But not in the way the Democrats and the media say.
This crisis has developed over decades as Congress, federal courts, and the bureaucracy have slowly sapped power from the office of the presidency. So when President Trump fights back, he is recapturing the rightful powers of the presidency.
Congress and the courts have been unconstitutionally eroding the powers of the presidency for decades. For example, the president has the constitutional power – even a constitutional duty – to control his subordinate officers. But Congress and the courts have limited his ability to do so, thus crippling his ability to ensure that the laws are faithfully executed. They have likewise undermined the president's inherent power over foreign policy. As they have done so, these other branches have inflated their own powers. For instance, individual members of the judiciary have even claimed the power to halt the entire federal government in its tracks.
Trump is reversing this dangerous tide by resurrecting our constitutional government based on the unitary executive theory. The word "theory" is misleading, because the idea is well supported by our nation’s founding history. The basic premise is that, because all executive power is vested in the president, he alone controls its use. Indeed, the "Take Care Clause" in Article II gives him the personal duty to ensure that the laws are faithfully executed.
And his powers go beyond just enforcing the laws that Congress creates: the president has inherent powers to control his subordinates and direct foreign policy. Thus, in his attempt to restore our republic, Trump is simply (and lawfully) flexing those powers.
Start with the president's control over his subordinate officers. To fulfill his constitutional role, he must be able to remove his subordinates. How else is the president to take care that the laws are faithfully executed if he can't fire executive officers who fail in their duties? To ask the question is to answer it – he can't.
Contrary to the cries of his opponents, Trump is lawfully exercising his authority whenever he removes those who undermine his administration. For that reason, he was fully justified in firing the head of the Office of Special Counsel, Hampton Dellinger, even if a congressional statute tried to limit his authority to do so. And, despite the aggressive rulings of lower courts, the Supreme Court is likely to uphold Trump's ability to remove his subordinates.
Also core to the president's power is his control over foreign affairs. But Congress and the bureaucracy have again seized this authority for themselves.
Consider the United States Agency for International Development (USAID). Trump’s and Elon Musk's efforts have exposed a leftist spending boondoggle. USAID funded the Taliban (yes, you read that right), incentivized illegal immigration, and spread DEI across the world. All of this undermines the president's America First agenda.
Yet critics say that Congress has somehow prohibited Trump from restricting USAID funding, pointing to the Impoundment Control Act, a Nixon-era restriction on the president's ability to "impound," or decline to spend, funds. But that Act has serious constitutional problems.
As constitutional scholar John Yoo has argued, Congress cannot prey on the president's foreign affairs power by forcing him to spend money that undermines his agenda. Presidents from Thomas Jefferson to Harry Truman refused to spend congressional funds when it conflicted with their foreign affairs power, and Trump is justified when he follows in their footsteps – even if Congress tries to resist him.
At the same time that Congress has tried to limit Trump's powers, some federal judges have attempted to micromanage Trump's presidency, even attempting to direct our nation's foreign policy. Some courts tried to force the president to retrieve a Salvadoran citizen from El Salvador – which is nothing less than the judiciary taking the foreign affairs power for itself. But it is the elected president, not unelected judges, who directs America's relationship with foreign nations.
Federal trial judges have tried to halt presidential actions more broadly through a relatively new and controversial power: nationwide injunctions. Historically, courts have issued injunctions that tell a defendant to do (or not do) an action, but only as applied to the opposing party in that case. In recent years, however, federal trial judges have claimed the power to tell the president how to act across the entire nation
– and, as discussed above, even across the whole world. This is absurd. Normally, litigation would have to occur around the country, permitting a wide range of decisions from various courts on an issue. But with a nationwide injunction, a single judge can halt everything on his say-so alone.
The American founders would be appalled to see judges grant this power to themselves, and they would recognize it as creating a constitutional crisis. Indeed, this power has no historical basis in our legal tradition, nor has Congress authorized it. And understandably, it has been criticized from both sides of the political aisle.
Although nationwide injunctions have shackled Republican and Democrat presidents alike, their frequency skyrocketed during Trump's tenure. Presidents Obama and Biden together faced only 26. But Trump faced 64 in his first term and is facing over 15 (and counting) in the first few months of his second.
Courts have a constitutional duty not to overstep their powers. As Alexander Hamilton once said, the judiciary has "neither force nor will" to carry out its orders – only the president can do that. Yet judges are going beyond their constitutional role, eroding their own credibility and undermining our constitutional order.
This constitutional clash started well before Trump took office. Over time, the other branches have restricted the president's control over his subordinates and trampled on his foreign policy power – all while expanding their own powers.
Trump didn’t start this constitutional crisis. But he is going to end it. And I applaud him for it.
Jay Mitchell is an Associate Justice on the Alabama Supreme Court.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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