The recent terms of the U.S. Supreme Court have seen an extension of presidential authority in several areas, including administrative control, immunity from criminal prosecution, and reduced scrutiny from nationwide injunctions. This evolution, however, has its deeper roots in foreign affairs and began long before the current era. As highlighted by cases like Trump v. Slaughter, this pattern is part of a larger trend where the court has progressively leaned toward endorsing enhanced presidential powers.
The groundwork for this trajectory was laid during the Reagan administration, with the rise of originalism and the Federalist Society advocating for the “unitary executive” theory. This theory, championed by Justice Antonin Scalia in his dissent in Morrison v. Olson, argued against statutory constraints impeding presidential control over the executive branch. Over time, Scalia’s dissent evolved into a majority opinion, broadly endorsing greater executive power.
The advent of Donald Trump’s presidency marked a significant assertion of presidential authority. Trump v. Slaughter further entrenched this power by overturning longstanding precedents like Humphrey’s Executor v. United States, which maintained congressional limits on presidential removals of agency heads. The Supreme Court also has consistently sided with the Trump administration in emergency dockets and other significant cases, thereby strengthening presidential supremacy.
Historically, the inclination toward presidential authority in foreign affairs stems from the founders’ intent to balance powers after experiencing majoritarian tyranny from state legislatures. This philosophical underpinning led to a system where checks and balances were emphasized, including in treaty-making and military command. Alexander Hamilton and other founders warned against unchecked military and executive power, fearing that it could lead to tyranny.
Throughout U.S. history, changes in balance have been observable, particularly concerning the interpretation of treaties and management of war efforts. By the late 19th century, national power dynamics shifted, leading to enhanced executive interpretations receiving greater judicial deference as the United States emerged as a global power. This shift meant that once the court steadfastly challenged excessive claims of executive power, as seen in Youngstown Sheet & Tube Co. v. Sawyer, that position evolved during the Cold War and the build-up of the national security state.
Decisions such as Trump v. Hawaii demonstrate the judicial preference for deferring to executive branches on issues cited as foreign affairs and national security matters. This culminates in a structural bias favoring executive power, worrying critics who argue it undermines the intended constitutional balance.
The warning comes starkly against a backdrop where increasing executive power doesn’t diminish with a more authoritarian presidency that might neglect established norms of governance. Without legislative or judicial restraints, the concentration of power, it is argued, could indeed validate historical fears of an omnipotent executive, echoing Hamilton’s caution that such concentration augurs more demagogic than democratic governance.
For more depth on this topic, you may find the full discussion at SCOTUSblog.