Constitutional Conversations

David Gray Adler

May 27, 2025

Executive Power and the Constitution: A Debate on Judicial Finality and Presidential Authority

The Trump Administration’s legal theory of the presidency asserts a broad interpretation of executive power, suggesting that the president may act independently of certain constitutional constraints, including judicial review, checks and balances, and traditional interpretations of the rule of law. This perspective has sparked significant debate among legal scholars gathered in the faculty lounge, officials striding the corridors of power, citizens at the office water cooler, and judges presiding over cases that raise important questions about the scope and limits of presidential authority. 

This theory revives an assertion of unbridled executive authority that many believed long settled, underscored by statements that challenge fundamental constitutional principles. On February 8, 2025, Vice President J.D. Vance declared that “judges aren’t allowed to control the executive’s legitimate power,” specifically addressing courts that have barred implementation of President Donald Trump’s executive orders. 

Vance’s statement follows a previous assertion that American presidents, including Trump, are free to ignore court orders that they believe encroach upon their constitutional powers. On social media, President Donald Trump himself declared that “He who saves his Country does not violate any law,” a contention he invoked to rationalize violations of statues with orders used to rationalize violation of statues like orders to summarily fire governmental officials and effectively dismantle U.S.A.I.D, raising urgent questions about the administration’s commitment to the rule of law—and whether it would obey judicial rulings that conflict with the president’s priorities. 

The historic American debate on the nature and scope of executive authority—punctuated and dramatized by the renowned 18th century exchange between James Madison and Alexander Hamilton—and spiked in modern times by assertions of power in warmaking and foreign affairs, has concluded, without exception, that the president is bound by the rule of law. 

President Trump’s interpretation of presidential authority, which he has articulated as“unlimited” power under Article II of the Constitution, does not find traction in the text, history, structure or architecture of the Constitution, but in the absolutist pretensions of 17th century English kings. 

“When the good and safety of the kingdom in general is concerned, and the whole kingdom is in danger, is not the king sole judge, both of the danger, and when and how the same is to be prevented and avoided?” asked King Charles I before the judges of the Court of Exchequer in the famous 1642 case of ship money. The English judges bowed before their sovereign’s arguments and wishes, and repeated the king’s arguments in the body of their opinions. The king effectively wrote the law. 

The Framers of the Constitution rejected the theory of executive prerogative, dismissed by James Wilson, who said, “the prerogative is of no moment in a republic.”

Indeed, the fulfillment of the Framers’ commitment to republican principles was manifested in executive subordination to the rule of law, and emphasized in their imposition on the president of the “Take Care Clause,” the solemn Article II duty that “He Shall Take care to faithfully execute the laws.” A president cannot “faithfully execute” the laws while violating them. 

Some argue that the Framers, so busy in their enumeration of powers to the three branches of government, left room for implied presidential prerogative powers. But Justice James McReynolds, in Myers v. United States (1926), dismissed that notion, writing that “it is beyond the ordinary imagination to picture 40 or 50 capable men, presided over by George Washington, vainly discussing, in the heat of a Philadelphia summer, whether express authority to require opinions in writing should be delegated to a President in whom they had already vested the illimitable executive power here claimed.”

The president is bound by the Constitution and the laws of the land and subject to judicial review and court orders, as affirmed in Marbury v. Madison (1803). “It is emphatically the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall. Since then, this fundamental principle has been repeatedly affirmed, including unanimously in United States v. Nixon (1974), which rejected the claim that the president could define the limits of executive power. 

At the Constitutional Convention, long before Marbury v. Madison, the Framers agreed on the principles of judicial review and judicial finality. Both proponents and critics of judicial review expected the courts to have the final word on constitutional limits. The Framers embraced judicial finality rather than a constant tug-of-war among disputatious departments, for without it, court rulings could be ignored and judicial review rendered meaningless. 

No delegate at the convention, no state ratifier, and no writer of The Federalist or Anti-Federalist Papers ever argued, hinted, or even flirted with the idea that the president should have the last word on the meaning of the Constitution.  As James Wilson made clear, the Framers had no interest or motive in granting the president the sort of monarchical prerogative that they fought to escape. Their commitment was to republicanism, in which no one is above the law. 

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