Concentration of Power in the Executive

In the twenty-first century, American democracy has fostered a disturbing state of forever war.1 Since September 11, 2001, the United States has been at war for nearly a quarter of a century: a decade-and-a-half longer than the Revolutionary War, and nearly two decades longer than the Civil War or World War II. The historic rise of executive power and initiative—especially in warmaking—has surely spurred this state of affairs.2 The federal budget now stands at $6.7 trillion annually.3 Prior to the cuts made in the second Trump administration, the federal workforce consistently grew, adding more than 140,000 employees between 2019 and 2023 alone. The executive branch now employs more than 4 million people, including almost 1.4 million in the uniformed military alone.4 A generation of today’s young adults has never known a world without war.

Congress’s passion to fund military and intelligence activities has given those agencies resources that increasingly dwarf the State Department’s, so there are now “about as many members of the armed forces marching bands as there are American diplomats.”5 As a matter of law, it has perversely become far easier for the president to commit U.S. troops abroad than to make a binding international treaty with the advice and consent of the Senate. Small wonder then that one consequence has been less formal diplomacy and more military interventions.

What causal forces—domestic and international, legal and political—have driven this dramatic concentration of power in the executive? The simplest domestic explanation, offered decades ago by law professor Charles Black, is that the structure of the U.S. Constitution naturally concentrates power and initiative in the executive when it comes to foreign affairs.6 Article I of the Constitution, Black noted, gives Congress almost all of the enumerated powers over foreign affairs, while Article II gives the president almost none of them. But Congress is poorly structured for initiative and leadership, because of “its dispersed territoriality of power-bases and . . . its bicamerality.” The presidency, by contrast, is ideally structured for the receipt and exercise of power. Black reasoned:

What very naturally has happened is simply that power textually assigned to and at any time resumable by the body structurally unsuited to its exercise, has flowed, through the inactions, acquiescence, and delegations of that body, toward an office ideally structured for the exercise of initiative and for vigor in administration. . . . The result has been a flow of power from Congress to the presidency.7

Since the nation’s founding, political advocates of executive power have argued that the presidency is institutionally best suited to initiate government action. In Federalist No. 70, Alexander Hamilton famously asserted that “energy in the executive is a leading character in the definition of good government.”8 In exercising that power over the centuries, the president has gained a singular ability to initiate and sustain international action.

These structural considerations help explain why, despite the framers’ clear textual preference for congressional leadership, successive presidents have seized the preeminent role in foreign affairs. To execute its functional duties, over time, the executive has gathered massive resources: numerous staff; a treasury drawing upon a nationwide tax base; a wealth of information and classified intelligence; and multiple sources of both hard power—including weapons and troops—and soft power—such as a bully pulpit, convening power, public visibility, and moral standing. These resources empower the president to energize and direct policy in ways that could not be done either by Congress or the bureaucracy acting alone.9 As the president has become increasingly “plebiscitary,” he has become uniquely visible and accountable only to the electorate.10 He is the only individual capable of centralizing and coordinating the foreign policy decision-making process. His decision-making processes now take on degrees of speed, secrecy, flexibility, and efficiency that no other governmental institution can match.

But structure and resources alone are not enough. To gain legal freedom to use these tools, successive presidents, through lawyers and the courts, have constructed an overarching constitutional theory to justify increasing executive unilateralism in foreign affairs. Justice George Sutherland’s 1936 opinion, United States v. Curtiss-Wright Export Corporation, declared:

The President . . . manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. . . . The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.11

But Justice Sutherland’s much-criticized dicta in that case went further, proffering the overbroad constitutional claim that the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations . . . does not require as a basis for its exercise an act of Congress.”12 This “sole organ” language posits such a sweeping, unsupported assertion of executive power that executive-branch lawyers long ago dubbed it, tongue-in-cheek, the “Curtiss-Wright, so I’m right, cite.”13

Sixteen years later, during the Korean War, the Supreme Court pushed back, invoking by a vote of six-to-three a constitutional counter-theory to invalidate President Harry Truman’s attempt to seize the steel mills. In Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), Justice William O. Douglas acknowledged that “all executive power—from the reign of ancient kings to the rule of modern dictators—has the outward appearance of efficiency. Legislative power, by contrast, is . . . cumbersome, time-consuming, and apparently inefficient.”14 But Justice Robert Jackson’s landmark concurrence famously proclaimed that, under the Constitution, “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress,” with the legality of executive action remaining reviewable by the courts.15

I have argued elsewhere that Youngstown’s vision of shared power better expresses the policy vision to which foreign relations decision-making should aspire.16 Balanced institutional participation in foreign policymaking is not only more faithful to the Constitution’s core principles of checks and balances and separation of powers, but better supports democracy, avoids authoritarian capture, and lowers the risks of catastrophic outcomes and militarism caused by executive unilateralism. By contrast, history chronicles, the unilateralist Curtiss-Wright paradigm gives too much power, responsibility, and freedom to the president, while letting Congress and the courts too easily avoid constructive participation in important foreign policy decisions. Yet, particularly in the twenty-first century, repeated interactions among the federal branches increasingly combine executive initiative with congressional acquiescence and extreme judicial tolerance. The synergy among these tripartite institutional incentives, not the motives of any single branch, best explains the growing pattern of executive concentration and unilateralism in American foreign affairs decision-making.17

From the founding to the present, the competing Curtiss-Wright and Youngstown visions have battled for dominance of U.S. foreign policy.18 The impulse toward executive dominance of foreign policy was present at the creation.19 Espoused by Hamilton, and both exercised and moderated by George Washington, the rise of executive power began during America’s infancy and adolescence (1789–1850), accelerated over the turn of the century as America rose to become a dominant regional power (1850–1933), and became entrenched as the United States emerged as the world’s hegemon after the two twentieth-century world wars (1933–1947).20 Franklin Delano Roosevelt’s personalization and institutionalization of the presidency initiated an extrovert phase in American foreign policy in which the president led the creation of the entire postwar multilateral political and economic order. A generation of American policymakers grew up and came to power believing in the wisdom of the muscular presidential leadership of foreign policy.21 Starting with Harry Truman, the president began to wield the frightening power to launch nuclear weapons, and thereby to cause a threat of mass destruction.

The activist logic of this extrovert era greatly expanded the executive branch and made presidential initiatives virtually inevitable. While the U.S. war in Vietnam caused widespread questioning of this globalist attitude toward foreign policy, presidential initiatives not only continued, but accelerated during the post-Vietnam era. During the Cold War (1947–1989) and post–Cold War years (1989–2001), America’s declining role as world hegemon forced changes in the postwar structure of international institutions, which did not reduce, but instead stimulated further presidential initiatives.22 Paradoxically, the relative weakening of America in the world arena prompted an increase, rather than a decrease, in executive initiatives and further concentration of executive power.23 Within new, informal regional and functional regimes that the United States did not dominate, the United States could no longer simply suppress conflicts of national interest, but was forced instead constantly to manage relations through repeated applications of economic carrots and political sticks.24 As global challenges multiplied, the president’s superior institutional capacity to generate governmental action virtually ensured that the burden of generating reactive responses to external challenges would fall on him. The perceived need for rapid, effective, and often secretive executive responses put growing pressure on the constitutional imperative of checks and balances.

Nevertheless, the Youngstown vision of checks and balances still held sway, both descriptively and normatively, as late as the George H. W. Bush and Clinton administrations. But the terrorist attacks of September 11, 2001, inaugurated an Age of Terror spanning the George W. Bush and Obama presidencies (2001–2017) that again repeatedly pressured the president to take unilateral action.25 Bush ordered invasions of Iraq and Afghanistan, reopened Guantánamo and CIA black sites, authorized torture and cruel treatment, and greatly expanded the use of force abroad, all in the name of preemptive self-defense.26 While the Reagan and Bush II administrations trumpeted executive power as a defining feature of their Curtiss-Wright constitutional vision, the Clinton, Obama, and Biden presidencies—afflicted by weak legislative support—also resorted to ad hoc unilateralism to respond to particular national security crises.27

The executive branch began to assert exorbitant claims of authority not just at times of political strength but also of political weakness. Weak executives assert unilateral power because they question whether Congress will endorse or the courts will ratify what they feel inexorably pressured by circumstance to do. Take, for example, Harry Truman’s decision to seize the steel mills during the unpopular Korean War, Richard Nixon’s illegal actions during Watergate, Jimmy Carter’s flurry of executive actions during the Iran Hostage Crisis, Ronald Reagan’s privatization of foreign policy during the Iran-Contra affair, and Joe Biden’s dramatic imposition of economic sanctions on Russia after its invasion of Ukraine.28

Once such crises are thrust upon the president, powerful domestic factors such as ideology, political philosophy, and bureaucratic politics combine to help drive his response.29 But the pervasive national perception that only the presidency can act swiftly and secretly to respond to fast-moving international events has not only expanded presidential powers, but also forced the executive branch into a pattern of unilateral action and reaction that has afflicted presidents of both political parties: weak or strong, reckless or law-abiding. While recent Republican administrations have tended proactively to seize more power, successive Democratic administrations with slim legislative majorities have reactively done the same, thus undercorrecting for past executive overreach.

A reciprocal interactive dynamic between international challenges and America’s domestic constitutional regime has thus intensified the concentration of power in the executive.30 Successive changes in reigning international regimes have increasingly forced the president to react to perceived crises, allowed Congress to avoid accountability for important foreign policy decisions, and encouraged courts to condone these political decisions, either on the merits or by avoiding judicial review. The constant sense of threat that has pervaded much of the twenty-first century has given weak and strong presidents alike more reason to monopolize the foreign policy response, a polarized Congress greater incentives to acquiesce, and the courts continuing reason to defer or rubberstamp.

Not surprisingly, as executive power has become more concentrated, it has pressed the limits of law. In my experience, executive-branch officials never think of themselves as lawless or dangerous. Instead, they invariably view themselves as beleaguered and put-upon. They feel obliged to serve yet underappreciated and misunderstood by those who do not recognize their worthy motives. As Ronald Reagan reportedly said during the Iran-Contra affair, “The American people will never forgive me if I fail to get these hostages out over this legal question.”31

Inside their bubble of “groupthink,” executives grow isolated, breeding a temptation to act alone, often in secret.32 When executives combine a capacity to act with a continual duty to react, it is only a matter of time before they see the advantages of acting without prior consultation. They can respond to crises more quickly if they do not spend time talking to others who do not work for them, who often do not share their information, perspective, or views. And so, executives come to find it more efficient to act alone and to seek post hoc forgiveness rather than ask prior permission.

In time, feeling put-upon and misunderstood allows executive actors to convince themselves that their actions must derive support from some external source, such as competence, or popular or legal legitimacy. So executives begin to blur the “is” and the “ought.” They come to believe that they exercise executive power because they ought to exercise executive power: endowed with some kind of right to do so, rooted in competence, law, or a democratic electoral mandate. From this reasoning, it is just a short step to Richard Nixon’s famous remark: “When the president does it, that means that it is not illegal.”33 Donald Trump recently echoed that thought when he tweeted, “He who saves his Country does not violate any Law.”34 In the presidential mind, the repeated exercise of executive power comes to validate itself.

This pattern of executive concentration, unilateralism, and lawlessness accelerated during the Trump era (2017–present): the two presidencies of Donald Trump that bookended four years of Joe Biden.35 Trump’s activist impulses repeatedly disrupted the global landscape with unprovoked trade wars, diplomacy by threat, anti-immigration campaigns, and denigration of alliances. The first reactive crisis of Trump’s first term was the COVID-19 pandemic, which prompted a wave of controversial domestic and international executive responses. During Joe Biden’s administration, by contrast, external events largely triggered executive action. An array of global threats—Russia’s 2022 invasion of Ukraine; Hamas’s 2023 attack on Israel; and the continued ascendance of China, pandemics, climate change, and artificial intelligence—all created a pervasive sense of threat that exacerbated the structural dynamic described above. But whether proactive or reactive, the pendulum kept moving in a unilateralist direction, fostering unremitting political pressure to expand presidential resources.

I personally witnessed this phenomenon over five decades. I first worked in the federal courts and the Reagan Department of Justice during the early 1980s, returned to the State Department from 1998 to 2001, 2009 to 2013, and again during 2021, the first year of the Biden administration. On each return stint, I observed how foreign policy power has shifted further and further away from Congress toward the executive branch.

Over the two decades since September 11, 2001, the military and intelligence budgets swelled as if, for years, only one arm muscle had been given steroids. Senior military officers confided that they had never faced an annual budget increase of less than 15 percent. Not only had power visibly shifted from Congress to the president, but within the executive branch it had shifted to the White House and the National Security Council. As the Biden administration began, COVID-19 occupancy rules further weakened the agencies and concentrated power in the White House, which was virtually alone among executive offices in functioning at full strength during the early stages of the pandemic.36

Even within the executive branch, national security bureaucracies have grown steadily richer, more powerful, and opaque relative to their diplomatic and justice counterparts. The 9/11 mentality dramatically reshaped the foreign relations bureaucracy, with each agency replicating subunits that mirrored and multiplied an insistent focus on foreign counterterrorism. The national security bureaucracy transformed into an unwieldy behemoth resembling what constitutional law scholar Michael Glennon has called “double government,” “a bifurcated system . . . in which even the President now exercises little substantive control over the overall direction of U.S. national security policy,” evolving “toward greater centralization, less accountability, and emergent autocracy.”37

The most visible consequence was numerous redundant officials doing the same job. Meetings requiring one lawyer from each department at the table in prior administrations still had one lawyer each from State and Justice, but now included as many as ten from various defense and intelligence agencies. At these inter­agency meetings, military and security interests are regularly double-counted and “kinetic” solutions predictably privileged over diplomatic ones. Not surprisingly, military action was usually executed with such tools as special operations, artificial intelligence, and cyberweapons, which can be deployed by the executive alone, virtually without congressional oversight.38

Trump’s two presidencies drove unilateralism to toxic levels.39 Trump 1.0 amalgamated his predecessors’ worst national security abuses. Like Nixon, Trump illegally used force abroad to kill Iranian General Qassem Soleimani in Iraq. Like George W. Bush, he claimed a right to make preemptive strikes. Like Nixon, he distorted law enforcement by influencing the attorney general to weaponize the Justice Department and composing an “enemies list” to target his critics. As in the Iran-Contra affair, the president condoned the privatization of foreign policy through the intervention of unaccountable rogue agents like his cronies Michael Flynn, Roger Stone, and Rudy Giuliani. And the subject of Trump’s first impeachment—the executive’s attempted diversion of an official request for arms from Ukraine toward a quid pro quo exchange of foreign aid and political information for private political gain—­recalled Lt. Col. Oliver North’s illegal diversion of proceeds from Iranian arms shipments to fund the anti-Sandinista Contras in Nicaragua.

To justify his unilateralism, Trump declared that “I have an Article II, where I have the right to do whatever I want as president.”40 Trump claimed that all of his actions were authorized, justified, and immunized from interbranch interference by his plenary constitutional authorities. Under the overarching theory of the unitary executive, any restraints coming from within the executive branch could be ignored, and any restraints coming from outside the executive could be treated as unconstitutional intrusions into the president’s plenary national security powers. Trump’s overarching constitutional claim emboldened him to seek to nullify the rule of law for his own administration.41

Over Trump’s first four years, the coordinate branches rarely checked, but instead enabled, far-fetched claims of national security emergency to justify unilateral executive action in such traditional areas of congressional authority as immigration, declaring war, international trade, and regulation of cross-border investments.42 Trump claimed the power to terminate at will such important international arrangements as the World Health Organization Charter, the Paris Climate Accord, and the Iran Nuclear Deal, without paying so much as lip service to interbranch consultation.43 He wielded broad diplomatic tools based on expansive readings of the recognition and foreign affairs powers and usurped Congress’s power of the purse by invoking emergency powers to build a border wall using funds that Congress had expressly withheld.44

Such a sustained presidential effort to dodge the rule of law could not have succeeded had constitutional checks and balances functioned as planned. But Trump’s unilateralist project fed on the willingness of executive-branch lawyers, a Republican Congress, and a compliant Supreme Court to normalize Trump’s aberrant behavior. Ironically, generations of executive-branch lawyers trying to protect us issued opinions empowering the president to act as our prime defender from national security threats. The collective outcome of their individual, largely good-faith, labors has been a mosaic of executive-branch opinions collectively accreting extraordinary powers to an institutional president who has now emerged as our greatest national security threat. Until Trump, those drafting such executive legal opinions could always assume that a president would have some internalized limit in which a sense of public duty or shame would dictate self-restraint. But Trump displayed no such limit, expressing unique contempt not just for the Youngstown vision of the Constitution, but for legal constraints of any kind.

In the face of Trump’s unilateralism, Congress repeatedly refused to assert its constitutional prerogatives. During Trump’s second impeachment proceeding, Senate Republican leader Mitch McConnell refused to support Trump’s Senate conviction for condoning the January 6, 2021, insurrection, when ten more Republican Senators joining the seven who voted to convict would have ensured Trump’s constitutional ineligibility for future presidential office.45 By 2025, McConnell, no longer majority leader, meekly protested while Trump praised Vladimir Putin, imposed tariffs, and appointed a secretary of Health and Human Services skeptical of vaccinations against polio, the crippling childhood disease from which McConnell himself had suffered.

By appointing three members to the Supreme Court, Trump showed that he could secure the overruling of the half-century-old precedent in Roe v. Wade.46 He found a majority ready to defer to fabricated presidential motives in upholding the travel ban against people from Muslim-majority countries, deferring to what Justice Sonia Sotomayor recognized as a national security “masquerade.”47 In Trump v. United States, a six-to-three majority of the Supreme Court, three of whom were elevated by Trump, startlingly weakened a president’s judicial accountability by creating unprecedented zones of absolute, presumptive, and evidentiary immunity for the official acts of a former president.48 Under the Court’s theory, a president’s communications with his attorney general were entirely immunized, even though precisely such communications had formed the basis for the impeachable conspiracy during Watergate that finally drove Richard Nixon out of office. Yet,  citing Youngstown, Chief Justice Roberts’s immunity opinion warned against “enfeebling the presidency” and weakening future hypothetical presidents, never acknowledging the actual acts recently undertaken by the lawless president that we just had and now have again.49

Biden’s four-year intermezzo between Trump’s two terms again undercorrected, particularly when his attorney general moved too slowly to secure Trump’s criminal accountability.50 While out of office, Trump was indicted in four separate cases and convicted of thirty-four felony counts, all of which were eventually frozen or dismissed after his reelection.51 When Congress sought to investigate or call witnesses from his administration to testify, Trump asserted executive privilege and fought subpoenas endlessly through the courts.

Yet even under Biden, the president operated almost entirely by executive order or national security directive and rarely proposed national security legislation unless it involved appropriations. The White House virtually gave up on congressional-executive agreements or supermajority ratification of Article II treaties as ways of concluding international agreements. After the 2022 invasion of Ukraine, the president imposed crushing trade and economic sanctions based on previously delegated statutory authorities.52 Employing weaponized artificial intelligence, cyberconflict, and special forces enabled executive warmaking to proceed based on classified policy memoranda, with minimal congressional oversight, under broad readings of obsolete legislative authorizations for the use of military force.53 And after Trump’s re-election, Biden’s presidency ended with another wave of executive initiatives, including a blanket pardon for his son and other members of his own family.

Trump’s second presidential term opened with a display of “the imperial presidency” unimagined when Arthur Schlesinger first coined the term.54 During the first one hundred days of his second term, Trump invoked an overarching Curtiss-­Wright theory to take executive unilateralism to new heights. After the courts issued hundreds of criminal convictions for those who had violated national security laws and participated in the infamous January 6 Capitol riots, Trump used a “pardon whitewash” to immunize even the most violent suspects. He issued more than one hundred and ten executive orders in his first eighty days, without seeking prior congressional authorization.55 He “paused” already appropriated expenditures for foreign aid in Ukraine and elsewhere, illegally refusing to disperse congressionally allocated funding in violation of Congress’s power of the purse.56 He imposed on-again, off-again tariffs against even our closest trading partners, and punished legal opponents with bills of attainder expressly forbidden by the Constitution.57

To implement his sweeping theory of the “unitary executive,” Trump moved quickly to undercut existing internal executive-branch checks and balances. Without notifying Congress, he dismantled oversight of his administration by firing seventeen independent inspectors general and the director of the Office of Government Ethics.58 To assert stronger control of the military, he fired the Chair of the Joint Chiefs of Staff, other top military leaders, and the Judge Advocates General for the Army, Navy, and Air Force, whose role is to provide independent guidance to military officials, including regarding the lawfulness of presidential orders.59 He threatened and then invoked long-moribund statutes to deploy the National Guard and military domestically against a claimed immigrant “invasion” and the “enemy within.”60

In the name of “government efficiency,” Trump consolidated control of the executive branch by seeking to dismantle entire congressionally established departments and independent agencies, mandating that only the president’s and the attorney general’s interpretations of law are controlling within the executive branch.61 He deployed billionaire private citizen Elon Musk to lay off, fire, forced-retire, or place on administrative leave tens of thousands of federal employees, and to question countless prospective employees about their loyalty to Trump.62 While these moves may have reduced the size of the federal government, they disemboweled the career civil service and further concentrated executive power in the hands of Trump’s most loyal political operatives.63

In the early months of Trump 2.0, Congress remained remarkably compliant, dutifully confirming such extreme cabinet nominees such as Defense Secretary Pete Hegseth, Health Secretary Robert F. Kennedy, Jr., Director of National Intelligence Tulsi Gabbard, and FBI Director Kash Patel. But at least initially, the lower courts pushed back, blocking early Trump initiatives with more than one hundred court rulings in seven different circuits presided over by judges appointed by five presidents of both political parties.64 Only time will tell, as those cases rise through the appellate process, whether a majority of the Supreme Court will finally rise up to challenge Trump’s unilateralist theory.65

Trump’s presidencies thus glaringly exposed how dangerous concentrated executive power can be in the hands of a lawless executive. Responding to the Court’s immunity decision, outgoing President Biden warned that: “the character of the men and women who hold that presidency [is] going to define the limits of the power of the presidency, because the law will no longer do it.”66 Executive unilateralism that may feel tolerable when the leader remains mindful of his constitutional oath directly threatens American democracy when it empowers a leader of lawless character.

So what to do when Americans elect a president lacking in moral character? With Trump’s return in 2025, the problems of executive concentration and unilateralism have reached crisis levels. Despite express constitutional barriers, Trump now repeatedly raises the prospect of running for a third term, and his White House social media post displayed an image of him wearing a crown, declaring, “LONG LIVE THE KING!”67

But the underlying problem remains structure as much as personalities. All three branches have contributed to the concentration and persistent unilateral exercise of foreign affairs power by the executive. This relentless push toward executive concentration has been driven not just by domestic structure and the challenges raised by successive international regimes but by increasingly extreme legal theories and executive practices that cannot be squared with the original constitutional vision that checks and balances do not stop at the water’s edge. This interactive dysfunction now powerfully challenges the constitutional norm that U.S. national security policymaking should be a power shared.

As yet, it seems premature to conclude that these practices have resulted in a de facto constitutional amendment that permanently redistributes constitutional authority. Justice Frankfurter’s concurring opinion in Youngstown famously argued that even “deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.” To become a historic “gloss on ‘executive Power’ vested in the President by § I of Art. II,” presidential actions must form “a systematic, unbroken executive practice, long pursued to the knowledge of the Congress and never before questioned . . . [making] such exercise of power part of the structure of our government.”68 Under this stringent legal test, the continuity and consistency of historical practice must be assessed on an issue-by-issue basis and meet rigorous standards to constitute formal constitutional acquiescence in executive action. So there is still time, even during a second Trump term, to restore greater balance to our constitutional order.

Public perception has come to treat executive dominance as the new normal. But if popular opinion, congressional outrage, judicial pushback, and allied resistance coalesce, successor administrations or other governmental institutions could counter this trend and finally push the pendulum back the other way. If so, the historical march toward unilateral presidentialism could be slowed, arrested, or even reversed. But if America insists on continuing to ignore or undercorrect for these excesses, more and more of our constitutional democracy will be exposed to existential threat.

Unless we all recognize and address this serious problem, Curtiss-Wright’s vision of presidential unilateralism will supplant the Youngstown vision of shared power as the constitutional default. A pressing political challenge of the Trump 2.0 years will be deciding how collectively to stem the flood, while at the same time rebuilding the constitutional dam. In the short term, those opposing Trump are best off pursuing a strategy of “revival-resistance-resilience.”69 Such a strategy would involve reviving traditional constitutional restraints on executive overreach, such as the Bill of Attainder clause, the power of the purse, and Congress’s foreign commerce and immigration powers; resisting unilateral overreach, particularly in trade and immigration; and showing resilience in the face of Trump’s government by executive order. For the longer term, Americans must pursue more thoroughgoing institutional reform. Again, the problem is not just personalities, it is structural. Truly fixing it will demand structural solutions in many areas, all of which I sketch in my recent book.70

If Trump’s return to power has a silver lining, it may be as a wake-up call, saying, “America, we have a problem”: the overconcentration of government power and initiative in the executive. Citizens must soberly address this issue, not through “America First,” but as Americans First. Perhaps the startling excesses of Trump 2.0 that have already happened, and are yet to come, will finally awaken us to the threat of reinstating the very king that America’s Constitution was designed to oust.