Conservative legal observer Gregg Nunziata lays out why conservatives ought to reassess their endorsement of expansive executive power and back tighter limits on presidential authority.
In a recent Atlantic piece, a well‑known conservative legal analyst, Gregg Nunziata, contends that conservatives should reassess their push for broad executive authority and instead back stricter restraints on the president’s powers:
The second Trump administration has exposed American Caesarism in a near-complete form. Despite aims to steer the nation in a fundamental direction, this administration lacks a coherent legislative program. Instead, the president governs through orders, emergency proclamations, and coercive transactions, using his authority to favor allies and punish adversaries. He has undertaken foreign military ventures and even declared wars largely on personal whim, while transforming the military into a partisan instrument for domestic policing. With Congress sidelined and the courts reluctant to curb Donald Trump’s excesses, America has been left with what some scholars describe as an “executive unbound”—and a president who threatens to supplant the republic in all but name….
The Constitution’s central premise is that liberty requires dispersed power. The concentration of authority in a single branch, as James Madison warned, is “the very definition of tyranny.” Americans are already feeling the consequences of this imbalance: because executive orders, emergency declarations, and unilateral actions lack the durability of laws enacted by Congress, policies swing wildly from one administration to the next. Families and businesses cannot plan ahead, which undermines investment, growth, and prosperity.
American Caesarism did not erupt overnight with Trump’s election; it has developed over decades. And while conservatives were not the sole architects of this situation, many helped foster a political vision centered on a single commanding figure—a vision now destabilizing the country. I have spent my career within the conservative legal movement, advising Senate Republicans on judicial nominations. I have become convinced that if the Madisonian republic is to endure, conservatives must acknowledge our role in bringing the nation to today’s breaking point, and work to reestablish the checks and balances we have helped erode.
I share the majority of Nunziata’s points, and I certainly endorse his ultimate conclusion that the conservative legal movement, the judiciary, and especially Congress should intensify efforts to rein in executive power.
I would extend Nunziata’s logic in several directions. First, as I have argued repeatedly in prior writings, the nondelegation and major questions doctrines championed by conservative judges and scholars can serve as effective tools to limit executive power, and they deserve broader application. We have already witnessed some positive effects in the Supreme Court’s recent tariff decision. There is substantial untapped potential here, for instance in curbing dangerous presidential attempts to “nationalize” control over elections.
Second, I would broaden Nunziata’s call for stronger judicial review of, and congressional oversight over, the invocation of emergency powers. I have written about this at length elsewhere. Courts should not defer to presidential claims that an “invasion,” an “unusual and extraordinary threat,” or other emergency justifies sweeping powers; such assertions require proof. And Congress should impose clear time limits on emergency powers, with the understanding that legal constraints on those powers are subject to nondeferential judicial scrutiny.
Third, even if the “unitary executive” thesis has some merit, it should not be applied to areas that lie outside the original scope of federal authority. If we are not prepared to roll back all such nonoriginal expansions of federal power, we should at least prevent concentrating vast discretionary authority in a single office.
I do have a few caveats about Nunziata’s reading. He underestimates the potential impact of the Supreme Court’s tariff ruling (a case I helped litigate). While Nunziata correctly notes that the Court’s opinion rested largely—though not exclusively—on the finding that the emergency authority in question does not authorize tariffs, and that it did not address Trump’s spurious national-emergency claim, the Atlantic piece shows that all six justices in the majority made clear that the president cannot wield limitless power to impose tariffs for any reason, and the three conservatives also ruled against Trump on the major-questions doctrine grounds, signaling their readiness to curb future power grabs related to “foreign affairs,” including those by Republican presidents. Justice Gorsuch also stressed nondelegation concerns.
I think Nunziata may also underrate how far Supreme Court rulings limiting deference to executive agencies can be used to rein in the presidency. He notes that “the judiciary remains less willing to confront executive overreach outside of the regulatory context, especially in matters of purported national security.” That is true to some extent. Yet the logic of those decisions applies broadly to all assertions of executive power, and several federal judges—many of them conservative—have applied them in nondeferential ways in the tariff case, and in cases challenging the president’s claims that illegal immigration and drug trafficking qualify as an “invasion.” Conversely, a minority of conservative judges have argued that the president deserves nearly absolute deference on the latter issue. I review the relevant precedents and critique the case for deference in this article.
As a libertarian, I find it generally straightforward to oppose executive power grabs because, beyond constitutional concerns, I also reject most of them on moral and policy grounds. This stance applies to Biden’s student-loan forgiveness plan, Trump’s immigration and tariff actions, and beyond.
By contrast, executive power presents tricky questions for both left-liberals and conservatives. They may often welcome sweeping executive authority when the person they favor sits in the White House, hoping he will use it for laudable ends, while they fear it when the power rests in someone else. To them I can only say that a massive concentration of power in a single person is inherently dangerous, contrary to the constitutional design, and—as Nunziata explains—a real threat to the republic. At the very least, those concerns should push you toward endorsing tighter constraints on executive power than you would otherwise advocate.
NOTE: Gregg Nunziata is Executive Director of the Society for the Rule of Law. I am a member of SRL’s Advisory Council (an unpaid position).
