This week’s expansion of federal power is in line with the Declaration’s view of what the presidency should be.
This week’s expansion of federal power is in line with the Declaration’s view of what the presidency should be.
C ritics of Trump v. Slaughter, which recognizes President Donald Trump’s power to fire federal officers, will cloak themselves in the authority of the Declaration of Independence. They will claim that this week’s great expansion of executive power — the broadest in a century — contradicts our founding document’s assault on monarchical power. Critics of the Supreme Court majority could not read the Founding more wrong, especially as we celebrate its 250th anniversary this weekend.
The Declaration of Independence’s attack on King George III did not amount to a wholesale rejection of executive power. Denying the sovereignty of the King-in-Parliament, the Revolution instead founded the new nation on natural rights and government by consent. The Founders may have launched a series of experiments to integrate the executive into a republican form of government, but they did not fundamentally reject the power itself. Slaughter’s reading of the Constitution to grant presidents the unlimited power to fire subordinate officers rests within this original understanding.
We would not know this, however, from the critics of the Court’s expansion of presidential power. “The Court gives the President a power unknown even to the English Crown against which the Founders revolted,” wrote Justice Sonia Sotomayor in the principal dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. The Slaughter majority, led by Chief Justice John Roberts, is “elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws,” she continued.
The Slaughter dissenters stand on the shoulders of a long line of those who view the revolutionaries as crusaders against executive power. “Their experience under the British crown led the Founding Fathers to favor less centralization of authority than they perceived in the British monarchy,” Arthur Schlesinger Jr. wrote in The Imperial Presidency. “As victims of what they considered a tyrannical royal prerogative, they were determined to fashion for themselves a Presidency that would be strong but still limited.” Louis Fisher, a respected political scientist at the Congressional Research Service, argues that the revolutionaries held “a distrust of executive power.” These scholars remind us that Edmund Randolph warned the Constitutional Convention in Philadelphia that creating a single executive would be the “foetus of monarchy.”
Of course, the Declaration of Independence sets out the revolutionaries’ rejection of monarchy and tyranny. It proclaims that the king had inflicted “a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” It proceeds to list 27 particulars. The charges remain general, without naming specific events or even colonies, which — as historian Pauline Maier has observed — followed the tradition of the English Declaration of Rights.
But the Declaration did not equate an executive itself with tyranny. It does not challenge, for example, the Crown’s power to veto bills; it only attacks the way in which the king had used it. Indeed, as the Declaration recognized, American leaders had petitioned the monarch “in the most humble terms” to block the imposition of trade restrictions, taxes, and military deployments that Parliament had ordered. Only after King George refused did the colonists claim that “A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
The Revolution re-founded the relationship between the citizen and the government as one based on natural rights and rule by consent. But the heart of the colonists’ dispute with London focused on British imperial governance — what Americans today call federalism. For the century before the Revolution, the colonies had benefited from a policy of salutary neglect, in which the colonies exercised significant governing authority through their elected assemblies. The Seven Years’ War, and Britain’s territorial gains in North America at the expense of the French Empire, demanded a larger military establishment in North America. Parliament imposed taxes and trade restrictions to pay for the new costs of colonial protection. While the colonists demanded the right to participate in the making of colonial policies, Parliament answered that it virtually represented their interests. The revolutionary slogan of “No taxation without representation” only stood in for the larger complaint about imperial lawmaking.
British leaders could not yet conceive of the decentralized structure that would successfully govern their empire in the following century. When Parliament refused to acknowledge their demands for self-governance, the colonists petitioned King George III for relief. When the Crown rejected their pleas, the revolutionaries announced their independence. Hence the Declaration’s bill of particulars against the king — through whom they believed their ties to the mother country ran — rather than against Parliament.
Understanding the Revolution as a dispute over federalism explains why the Declaration of Independence itself is not a rejection of executive power. In the Articles of Confederation, which followed the Declaration, Congress did not play the role of a legislative body as we understand it today. Rather, it performed executive and administrative duties first, and legislative ones second. The states retained the legislative powers of managing trade, levying taxes, or directly regulating individuals. Congress instead replaced the king as the imperial executive authority responsible for external affairs, such as diplomacy and war. While Congress’s failures in exercising legislative power demanded a new Constitution, the Articles did not transform the nature of executive power.
State experiments in constitution-making teach the same lessons. Antipathy toward the Crown naturally found a powerful expression in the first state constitutions. But these efforts at reform sought to restructure the executive branch of government rather than to change the nature of executive power itself. States undermined executive independence; all but one subjected the governor to selection by the legislature rather than election by the people. States limited their time in office, such as by forbidding governors from serving more than a single one-year term. States also disrupted executive unity — the very mistake corrected by Slaughter — by subjecting governors to the approval of a council of state, allowing legislatures to select other executive branch officers or even divide up the governorship into a committee. In the view of historian Gordon Wood, who recently died in a tragic accident, these changes made the governors “little more than chairmen of their executive boards.”
These structural experiments did not last long, however, and the states still retained the executive’s substantive powers relatively unchanged. In his draft of the Virginia Constitution, for example, Jefferson sought to reduce the executive to an “Administrator.” In the reverse of the approach that the federal Constitution’s Article II, which empowers the president, would use, Jefferson set out the powers forbidden to the executive: The administrator could not declare war or peace, issue letters of marque or reprisal, raise or introduce armed forces, or build armed vessels, forts, or strongholds. Although the draft still left to the administrator any remaining “powers formerly held by [the] king,” there was little left.
In drafting their new constitutions, however, states generally rejected Jefferson in favor of John Adams. In his Thoughts on Government, which became the blueprint for a later wave of state constitutions, Adams urged the adoption of bicameral legislatures and of a governor “who, after being stripped of most of those badges of domination called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature.” Adams called for a governor, a commons, and a mediating senate, without enumerating each body’s powers. Virginia even rejected that draft and instead adopted a constitution that vested the governor (advised by a council) with the power to “exercise the Executive powers of Government.”
The second wave of state constitutions provided for a strong, unitary executive branch that afforded the governor a wide degree of authority and structural independence. These examples demonstrated that an independent and unitary executive could exercise a wide degree of freedom in matters of war and peace. The New York constitution, for example, received wide praise among the Framers on account of its powerful executive. Adopted in the spring of 1777, the New York Constitution learned from the mistakes of other states and rose to the demands of the British occupation of New York City. New York vested “the supreme executive power and authority of this State” in a single, popularly elected governor — no council of state or executive committee here. The New York Constitution did not enumerate powers transferred from the executive to the legislature. Vigorous government returned when traditional executive powers were restored to an independent and unitary governor. These lessons did not go unnoticed by those who would write and ratify the Constitution a decade later.
What is remarkable about the Declaration of Independence and its aftermath is not the experiments in limiting the executive branch but how soon the Constitution restored executive power to its traditional forms and modes. In attacking Slaughter, opponents of presidential power fail to understand this history. They mistake the Founders’ criticism of the policies of King George and Parliament for an assault on the nature of executive power itself. The Constitution deliberately rejected the structurally fragmented governorships and instead revived the vesting of executive power in a single executive. So too has the Supreme Court finally ended the plethora of independent agencies, which have disrupted the president’s ability to lead the executive branch with a single agenda. Rather than a sword to attack the conservative justices on the Supreme Court, the Declaration of Independence can serve as their great shield.