Amanda Shanor and Serena Mayeri, University of Pennsylvania, have posted Executive Domination: Separation of Powers and Constitutional Change:
This article identifies an ambitious constitutional change project undertaken by the second Trump administration and its allies to transform the constitutional powers of the federal executive branch. In their new and distinctive vision, the executive wields the power not only to transform ordinary domestic governance into a zone of unreviewable presidential prerogative and to suspend constitutional rights at will, but also to say what the law is and what the Constitution means.
The rich literature on movements effecting transformations in constitutional law and culture largely concerns rights. This article offers an account of change in understandings of constitutional powers. It describes how the Trump administration uses pretextual claims of national security, foreign policy, and emergency to extend exclusive and preclusive power into areas that historically have garnered the highest level of constitutional protection; claims the authority to switch rights off; evades judicial review; and irreversibly alters facts on the ground. The administration uses financial leverage to coerce universities, law firms, and media organizations into relinquishing to the executive not only constitutional and statutory rights but the power to define them, a strategy we call authoritarianism by agreement.
The administration’s approach, which we term executive domination, lacks the subtlety and stealth of autocratic legalism. It openly flouts legal and rhetorical norms and bypasses normal processes, often not out of necessity (Republicans control Congress and have captured the Supreme Court) but because doing its work the hard way helps to shift popular understandings of constitutional meaning to make the once unimaginable a reality.
Existing explanatory frameworks for democratic backsliding and authoritarian ascendancy, developed in other national and historical contexts, illuminate the contemporary United States but do not capture it fully. The Trump administration aspires to a distinctively American mode of governance that translates the structural logic of exploitative employment and family relationships into federal executive power. Executive domination contains echoes and remnants of the American past, including post-Reconstruction Redemption; New-Deal era exclusions from social welfare benefits and labor regulations; coverture and servitude. Its whole-of-government approach, however, is new: the administration aspires to wield the full force of executive power—at the federal level and across domains—as if it were unfettered private control.
--Dan Ernst
