The Textual Foundation
The modern presidency has swollen far beyond the office the Framers designed. Article II of the Constitution, the entire textual blueprint for executive power, runs fewer than one thousand words. Within that brief space, the President receives a single grant of executive power, a duty to faithful execution, and the role of commander in chief. Nowhere does the Constitution authorize the White House to rewrite immigration law by memorandum, forgive hundreds of billions in student debt by press release, or restructure national energy policy through agency rulemaking. Each of these actions rests on the same assumption: that Congress may delegate its lawmaking power to the executive branch and that the President may stretch that delegation until it covers nearly any national problem. That assumption is not originalist. It is not even faithful to the text.
Originalism asks a simple question. What did the Constitution mean to those who drafted and ratified it? The answer, on executive power, is not ambiguous. The Convention rejected a monarchical executive. It created a President who would execute laws, not manufacture them. James Madison warned in Federalist No. 47 that the accumulation of legislative, executive, and judicial powers in the same hands is the very definition of tyranny. Alexander Hamilton, often cited for a robust presidency, nevertheless insisted in Federalist No. 78 that the judiciary holds the interpretive power and that the legislature alone possesses the power to make general rules. The President's role was energetic but bounded.
The modern presidency has crossed that boundary. The last three administrations have treated executive orders as substitutes for statutes. President Trump issued more than two hundred executive orders during his first term. President Biden issued more than one hundred sixty in his single term. These figures measure something deeper than political style. They measure a governing culture in which Congress writes broad statutes and then allows the White House to fill in the details. That culture has produced an administrative state that operates with only occasional input from elected representatives.
The Administrative State in Numbers
The scale of executive power is not merely theoretical. In 2024, the Federal Register published more than ninety thousand pages of rules, guidance documents, and executive orders. That volume exceeds the output of the 104th Congress by a wide margin. When unelected regulators produce more binding law than elected legislators, the separation of powers becomes a decorative slogan rather than a working structure.
The Supreme Court has begun to notice. During its 2023 and 2024 terms, the Court handed down major decisions limiting agency authority. In Loper Bright Enterprises v. Raimondo, the Court ended Chevron deference, the doctrine that required judges to defer to agency interpretations of ambiguous statutes. In Securities and Exchange Commission v. Jarkesy, the Court held that the Seventh Amendment guarantees a jury trial before the SEC may impose civil penalties. These rulings do not solve every problem, but they restore a core originalist principle: the power to make law and the power to adjudicate disputes cannot be folded into the same administrative apparatus.
The cost of executive overreach is measured in more than court dockets. In 2023, the Congressional Budget Office estimated that the Biden administration's student loan cancellation plan would cost roughly four hundred seventy five billion dollars over ten years. That figure is larger than the annual defense budget. Congress had not appropriated the money. It had not authorized the program. The President acted under a statute passed decades earlier for an entirely different purpose. The Supreme Court struck the plan down, but the episode reveals how executive power has become a standing temptation for both parties. Republicans should not imagine that a conservative president will resist the same temptation once the machinery is in place.
A Path Back to the Constitution
Restoring constitutional government will require more than litigation. It will require Congress to recover its institutional pride. The Framers placed the legislative power first in Article I for a reason. Lawmaking is the defining act of republican government. When Congress passes vague statutes and leaves the details to regulators, it abandons its constitutional duty and leaves citizens subject to rules they never voted on. The REINS Act, which would require Congress to approve major regulations before they take effect, is one practical step toward restoring legislative accountability. So is a renewed commitment to the nondelegation doctrine, which would prevent Congress from handing away its core powers.
The executive branch also has obligations. Presidents should interpret statutes narrowly, appoint judges who respect the text, and resist the urge to solve every problem by emergency decree. The Constitution does not grant the President a general power to act during crises. It grants specific powers and expects restraint elsewhere. George Washington understood this when he issued only a handful of proclamations and rejected calls to exceed his authority. Modern presidents of both parties would do well to recover that example.
Critics will say that originalism is impractical in a complex modern economy. That objection confuses complexity with constitutionality. There is nothing in the structure of modern life that requires the President to write law. Congress can write detailed statutes. Agencies can apply those statutes to particular facts. Courts can resolve disputes. The Framers anticipated a growing nation. They did not anticipate that growth would become an excuse for consolidating power in a single branch.
The conservative case against executive overreach is therefore the conservative case for ordered liberty. Power divided is power checked. A President who makes law is a President unbound. The Constitution offers a better path, one that respects the text, honors the Framers' design, and protects the liberty of the American people. The task before us is to walk it.
