The Text Is Clear
Article II of the Constitution vests "the executive Power" in the President. Not the legislative power. Not the judicial power. The executive power — the power to enforce laws that Congress has written and the courts have validated. The distinction is not academic. It is architectural.
The Constitution is clear on this point. The Founders, having just fought a war against monarchical overreach, were meticulous in their separation of powers. Madison's notes from the Constitutional Convention reveal a deep anxiety about concentrated authority — an anxiety that produced the very structure of divided government we inhabit today.
The Modern Drift
The expansion of executive power did not begin with any single administration. It is a bipartisan project, accelerated by emergency and normalized by precedent. Executive orders, regulatory guidance, enforcement discretion — each tool, individually defensible, has collectively produced something the Framers would have recognized immediately: rule by decree.
Notably, the most aggressive expansions have come not through constitutional amendment or even statutory authorization, but through creative reinterpretation of existing law. When the executive branch decides which laws to enforce and which to ignore, it is not exercising discretion. It is exercising legislative power.
One need only read the Federalist Papers to understand that the Founders anticipated precisely this threat. Hamilton, in Federalist No. 69, took great pains to distinguish the American president from the British king. Today, that distinction has become uncomfortably thin.
The Court's Role
The Supreme Court's recent major questions doctrine represents a welcome correction. By requiring clear congressional authorization for agency actions of vast economic or political significance, the Court has begun to reclaim the structural boundaries that decades of deference eroded.
This is not, as some have suggested, judicial activism. It is judicial restoration. The Court is not creating new limits on executive power. It is enforcing the limits that have existed since 1789.
The Path Forward
The solution is not to elect better presidents — though that would help. The solution is to insist that the presidency operate within its constitutional boundaries regardless of who occupies the office. This requires a Congress willing to legislate rather than delegate, courts willing to enforce structural limits, and a public that understands why those limits exist.
The Founders gave us a republic, as Franklin reportedly said, if we could keep it. Keeping it requires that we remember what it is: a government of laws, not of men, and certainly not of executive memoranda.
