One of the core tenets of the conservative legal movement over the past half-century has been that presidents should have more power. The “unitary executive theory” developed by John Yoo, then an attorney in George W. Bush’s Office of Legal Counsel, holds that the president has nearly unlimited authority in the conduct of foreign policy, to the extent that he could legally order the testicles of a child to be crushed.
Naturally, Republican judges and justices always discover a sudden allergy to presidential power whenever a Democrat is occupying the White House; both Barack Obama and Joe Biden spent their entire terms getting their domestic agendas hamstrung by hyper-tendentious lawsuits and partisan hack rulings. Nevertheless, thanks in part to the conservative legal movement, the powers of the presidency have tended to grow over time. It was Obama, after all, who had several American citizens assassinated without trial.
Undoubtedly, the apex of right-wing “jurisprudence” on presidential power is the aptly named Trump v. United States, in which Chief Justice Roberts declared the president immune from criminal prosecution for “official acts,” which he defined very widely, and presumptively immune for unofficial ones. For my money, it is the worst Supreme Court decision in American history. As the dissent argued, “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
Today, America is getting clubbed over the head with the reasons why monarchies are bad. Roberts turned the presidency into a kingship, and the first president to govern under this ruling has compressed a solid millennium or two of monarchical misrule into a mere ten months. One would think that even a casual viewer of Schoolhouse Rock! would understand this, but if there’s anything that characterizes Donald Trump’s second term, it is the need for remedial education.
The most immediate problem with kings is that they are liable to abuse their power. In his decision anointing Donald I, first of his line, Roberts argued that a president worried about being prosecuted won’t exercise power freely enough, and the public will be deprived of the great benefit of his bold and vigorous leadership. “The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution,’” Roberts wrote, citing another case where the Court unanimously repealed a bunch of anti-corruption laws, “raises ‘unique risks to the effective functioning of government.’”
Roberts barely even considered the possibility that a president free from any worry about legal consequences might do horrible stuff, like, for instance, murdering random people. Possibly taking as its model Henry VIII, who had dozens of people executed on trumped-up charges, the Trump administration is conducting an ongoing assassination turkey shoot of random fishermen in the Caribbean.
A second problem with kings is their potential for poor governance—sometimes they were competent and capable, but sometimes (probably more often, given their marriage habits) they were not. In Trump v. U.S., Roberts asserted that criminal “immunity is required to safeguard the independence and effective functioning of the Executive, and to enable the President to carry out his constitutional duties without undue caution.” But it does not occur to him that an unaccountable executive might be unfit to rule. Henry VI, for instance, inherited the English throne when he was just nine months old, and when he finally came of age, he turned out to be feckless and prone to monthslong fits of catatonia—but kept on living for decades. With the throne de facto vacant, most of his father’s military conquests were rolled back, and the resulting power vacuum touched off 30 years of civil war.
If anything, Trump’s rule—no doubt enabled by the literal get-out-of-jail card handed to him by the Court—has been even worse than this. His trade war makes no sense whatsoever on its own terms, and his general behavior has been so erratic and alarming that America’s whole alliance system is melting down. Personally, Trump looks every day of his 79 years, is clearly ill with something, and often evinces no understanding of what his administration is doing, just like an aging king on his last legs. When Trump is cogent enough to understand what is happening, he commits one grotesque atrocity after the next, and when he is not, a bunch of scheming viziers elbow each other out of the way to commit their own.
Governance is not only inconsistent, but feckless. While I was writing this article, Trump posted on Truth Social that his Democratic opponents in Congress should be summarily executed for arguing that the military should refuse to obey illegal orders. Nobody sprang into action to carry those killings out. That is a good thing, to be clear, but it shows that even the so-called “effective functioning of government” is absent.
The framers of the Constitution were perfectly aware of these problems—an obnoxious English king was, for them, current reality. That’s why they set up a selection process for Congress and the president that was not hereditary, and also provided a mechanism for levering them out of office if necessary: impeachment. That mechanism is a dead letter thanks to the utter corruption of the Republican Party, alas, but the principle remains more germane than ever.
The United States was constructed to be a government of laws, not men. It doesn’t matter what the bribe-ridden frauds on the Supreme Court write down. Presidents can and should be easily replaced—indeed, much more easily, through a vote of no confidence rather than impeachment. No one is such a paragon of John Roberts’s imagined presidential virtues that it is worth risking what is happening all across the country today.