National Review: Progressives Shouldn’t Care About Separation of Powers Only When Trump Is President
The Trump administration is racking up injunctions from federal courts, halting its efforts to shrink the federal government. From the funding freeze to the federal worker buyout, judges have put many of the administration’s early executive actions on hold. For example, on February 10, 2025, a federal court found that the Trump administration had failed to follow its injunction of the funding freeze after 22 state plaintiffs complained that, among other things, air-monitoring grants from the Environmental Protection Agency and Department of Energy subsidies for electric heat pumps and water heaters remained unavailable. The court warned that officials violating the court’s orders could be found in contempt.
The press cannot get enough of this and have labeled it a crisis. On the morning of February 11, 2025, Politico’s Playbook wrote, “Donald Trump’s stunning disregard for almost every legal norm is hitting crisis point this week.” On February 10, 2025, the Washington Post published the “analysis” column “What is a constitutional crisis? And why some scholars say we’re in one.” The New York Times morning newsletter (in an issue titled “A Constitutional Crisis?”) pointed to a sharp decline in “expert ratings of U.S. democracy” (whatever that means) and declared that “this is about the separation of powers.”
The president’s implementation of his priorities is indeed about the separation of powers. It has always been, since 1789, about the separation of powers. But that is not how many in the press, academia, and all three branches of government saw things before January 20, 2025.
For decades, the expansion of the administrative state has trampled on the Constitution’s separation of powers and, in doing so, has interfered in serious ways in the liberty and the lives of Americans. This has been cheered on by politicians, intellectuals, and opinion leaders who believe that society in the 21st century is too complex to be governed by you, me, and our elected representatives. According to them, it must be left to the experts who will tell us the best way to live. So, they supported the efforts of administrative agencies to make law themselves, instead of Congress, even when agency regulations exceeded statutory authority.
The Biden administration fully embraced this view. And its record is strewn with obvious administrative excesses that violated the separation of powers and were rejected by the Supreme Court. President Biden unilaterally decided to spend roughly $400 billion to cancel student-loan debt pursuant to a statute that allowed him only to “waive or modify” loans in an emergency. The Supreme Court sensibly concluded that Congress had not permitted the president to “completely rewrite” the statute and cancel student debt. The Occupational Safety and Health Administration unilaterally imposed on most American workers a mandate to receive the Covid-19 vaccine, claiming that Congress’s authorization of workplace safety regulations permitted this sweeping intrusion into the personal health care decisions of 84 million workers to prevent the spread of the virus. The Court rejected this order, too, as extending “beyond the agency’s legitimate reach.” Under the Trump and Biden administrations, the Centers for Disease Control and Prevention banned almost all evictions nationwide, an exercise of authority far outside the CDC’s statutory remit. The Supreme Court initially allowed the moratorium to remain in place during a legal challenge because it was about to expire. Justice Brett Kavanaugh specifically noted that not striking it down immediately was a pragmatic choice but that the moratorium was ultimately unlawful. Nevertheless, the Biden administration defied Justice Kavanaugh’s warning and re-upped the moratorium anyway, only to have it predictably rejected. And as President Biden’s coup de grâce, he declared by tweet that the Constitution had been amended.
I do not recall a similar outcry about the collapse of our constitutional order as a result of these actions.
Such violations of the separation of powers have been long-running and have had real and profound consequences for Americans. I see that every day in the clients represented by my law firm, Pacific Legal Foundation. In internal tribunals rather than in a neutral court with a jury, administrative agencies such as the National Labor Relations Board and the U.S. Department of Agriculture have sought to impose damages, fines, and bans on the movie producer David Wulf, for example, and the horseman Joe Manis. Congress has handed over the enforcement of the securities laws to a private organization, FINRA, leaving the broker-dealer Frank Black, for example, to fight for years to get a fair opportunity to defend himself against accusations of wrongdoing. The Federal Trade Commission attempted to unilaterally ban noncompete agreements threatening the entire business model of small businesses like ATS Tree Services, LLC, which relied on such agreements to make its employee-training programs feasible. And even after the Supreme Court in Sackett v. EPA confined the Environmental Protection Agency to regulating only those wetlands that are indistinguishable from navigable waters, the EPA has continued to pursue enforcement action against Robert White for making flood-prevention improvements in a low-lying area of his property.
Where was the outcry for David, Joe, Frank, ATS, and Robert? Did it not matter that the separation of powers was being ignored to impose the government’s will on everyday Americans?
Now, the Trump administration has turned the administrative state on itself. The target is not Americans in their day-to-day lives; it is the federal government’s own largesse. The government’s own agencies are being downsized, funding is paused, workers are placed on leave, and the newly elected president seeks to conform spending to his priorities. And we are expected to believe that this — not the daily trampling of Americans’ rights and liberties — is the making of a constitutional crisis.
There will likely be legal excesses by the Trump administration. And the administrative state itself is currently organized in ways that are antithetical to the Constitution. Fortunately, the Supreme Court has proven itself committed to restoring the separation of powers. But the most serious threat to our constitutional order does not come from delays in the distribution of subsidies for electrifying home-heating systems. It comes from the consistent subordination of the separation of powers to enable the government’s control over our individual lives.
Notwithstanding my complaints here, I welcome all these converts to the cause of preserving and restoring the separation of powers. And it is my fervent hope that their newfound zeal for the Constitution’s structure includes restoring its protections for everyday Americans the next time their team is in charge.
The op-ed originally appeared in National Review on March 2, 2025.
