President Trump’s current dismemberment of the federal government is actually (mostly) within his power to do. To understand what’s happening in the Trump Administration right now, we have to go back several decades. We also have to review Article II of the U.S. Constitution, which created the Presidency. Fortunately, it’s short. I cover it in my Constitution 101 Seminar here. Spoiler Alert: the powers of the Presidency are very limited.
Decades ago, Congress discovered it can write laws (and claim credit for them), but kick them over to the Executive Branch (the Presidency) to figure out the details. This was exacerbated by the 1942 landmark Supreme Court opinion in Wickard v Filburn which essentially paved the way for the Federal Government to regulate everything, sidestepping the Tenth Amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, if the Constitution doesn’t say the Federal Government can do, then the Federal Government can’t do it. This newfound power was given further life by the Administrative Procedure Act of 1946 which specified how the Executive Branch would go about making all those regulations.
That was about 80 years ago. Over eight decades, Congress has systematically passed numerous laws authorizing the creation of dozens of federal agencies, almost universally under the authority of the President of the United States. They can pass the “Save the Children Act” and take credit for it come re-election time, and conveniently avoid the tedious business of thoughtfully crafting complex legislation by making it The Executive Branch’s Problem.
You can see this in the featured photo, taken by Senator Mike Lee in 2014, of the 2013 Federal Register, which includes all “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.” The tiny stack of paper on top is all law actually passed by our elected representatives in Congress the same year.
So here’s the formula:
- Remove barriers to Federal Overreach: check (via Wickard v Filburn)
- Give bureaucrats regulatory power: check (via Administrative Procedure Act)
- Step back and watch the Federal Government grow: check (over eight decades)
The result is what Mark Levin calls the “Federal Leviathan” which is accurate. Most people don’t associate the endless Federal agencies with the Presidency, but nearly all of them (with a small handful of exceptions) fall under Article II–the Presidency.
Most of these agencies aren’t required to exist, they are authorized to exist. Similarly, Article I, Section 8, Clause 7 of the U.S. Constitution authorizes Congress to establish Post Offices, but doesn’t require it. All of these agencies were established because Congress, writ large, ignored the Tenth Amendment and its enumerated powers under Article I, and nobody ever had the will to reduce them, let alone shut them down. Until now.
Essentially, what President Trump and Elon Musk are doing is dismantling much of the Executive Branch–agencies created by Congress and passed off to the President to figure out, despite no legitimate authorization under the Constitution for either.
The cries of a Constitutional Crisis® are because President Trump isn’t asking Congress for permission to dismantle the agencies. But he doesn’t have to, since they were put under the authority of the Executive to begin with.
President Trump is literally weakening the power and scope of the Presidency by casting off things the President was never meant to have power over.
If they want to claim President Trump is a fascist, he’s the Worst. Fascist. Ever.
