The Constitution and Election Law

Previous posts have discussed authoritarian moves by the executive branch.

U.S. District Judge Indira Talwani, found the new Postal Service rule on mail-in ballots is likely unlawful and unconstitutional,

The Elections Clause of the Constitution provides: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators. U.S. CONST. art. I, § 4, cl. 1. 

“[T]hese comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, [and] counting of votes[.]” Smiley v. Holm, 285 U.S. 355, 366 (1932). “In practice, the Clause functions as ‘a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.’” Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 9 (2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)). “Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’s preemptive intent. . . . Unlike the States’ historic police powers, the States’ role in regulating congressional elections . . . has always existed subject to the express qualification that it terminates according to federal law.” Id. at 1415 (citation modified).  

 Accordingly, as to the time, place, and manner of federal elections, the Elections Clause “grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.” Foster, 522 U.S. at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832–33 (1995)).13  

...

The Constitution does not grant the President any specific powers over elections.14 Broadly, the Constitution vests the President with “executive Power” and commands him to “take Care that the Laws be faithfully executed[.]” U.S. CONST. art. II, §§ 1, 3. The President “plays no direct role in the process” of appointing electors, “nor does he have authority to control the state officials who do.” Trump v. United States, 603 U.S. 593, 627 (2024). As the Supreme Court has observed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Medellín v. Texas, 552 U.S. 491, 526–27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). 

No Tribute, No Pardon

 Many posts have addressed the president's pardon power.

A pardon industry has arisen during the Trump years.

But not all can afford to pay.

 Kenneth P. Vogel and Alan Feuer at NYT:

President Trump quietly denied nearly 6,000 clemency applications this month from people who mostly lacked political connections and had waited patiently in a queue while he awarded pardons and commutations to allies who had skipped the line.

The denials came after his administration had raised hopes that he might mark the country’s semiquincentennial by granting clemency to as many as 250 people.

That raft of clemency grants did not materialize. Instead, Mr. Trump doled out fewer than 20 pardons on July 3 to Clean Air Act scofflaws along with a political donor.

Thousands of other petitioners were left waiting.

The denials were announced inside the Justice Department in a July 14 letter from Ed Martin, the U.S. pardon attorney, to United States attorneys across the country.

Grievances

 Many posts have discussed the Founding.

Ryan Goodman, Jack Palmer-Coole, Siven Watt and Simone Lipkind at Just Security:

Americans commemorate the 250th anniversary of the signing of the Declaration of Independence this year. As many in the United States and around the world reflect on the words in the solemn document, it will be readily apparent how the actions of the monarch that prompted the “grievances” of the settlers are echoed by the actions taken by the current presidential administration in its first year and a half. 

We believe there is an important history lesson in simply reading, and rereading, the Declaration and reflecting on the current times in the United States. In the passages below, the text of the Declaration is annotated with the words of federal judges in 52 court cases involving the current administration. We have identified 17 of the 27 grievances with a contemporary analog.

Over the past months, different studies published at Just Security have closely documented how the federal courts have adjudicated Americans’ attempts to vindicate their rights against administration policies. The gravity of the judges’ conclusions are sobering. Indeed, reading the Declaration and their words side-by-side shows how much the very fabric of the American social contract is being tested. Today’s federal judiciary, no less than the signatories of the Declaration 250 years ago, is speaking to the current generation about the foundational needs of a functional and representative American democracy, with meaningful checks and balances, and above all, a commitment to the rule of law.

....

Grievance 16: For cutting off our Trade with all parts of the world:
Grievance 17: For imposing Taxes on us without our Consent:

Historical grievance: The Boston Port Act (1774) shut down Boston Harbor, the Restraining Acts (1775) barred New England from trading outside the British Empire, and the Prohibitory Act (1775) prohibited American trade altogether (Grievance 16). The Sugar Act (1764), Stamp Act (1765), and Townshend Acts (1767) imposed direct taxation on the colonies without their consent or representation in Parliament (Grievance 17).
Contemporary translation: Executive restriction of international trade (Grievance 16); and executive imposition of tariffs (considered a tax by the Supreme Court) without congressional authorization (Grievance 17).
Strength of contemporary analog: Strong.

“Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA — ‘regulate’ and ‘importation’ — the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.

Article I, Section 8, of the Constitution sets forth the powers of the Legislative Branch. The first Clause of that provision specifies that ‘The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.’ It is no accident that this power appears first. The power to tax was, Alexander Hamilton explained, ‘the most important of the authorities proposed to be conferred upon the Union.’ It is both a ‘power to destroy’ and a power ‘necessary to the existence and prosperity of a nation’ — ‘the one great power upon which the whole national fabric is based.‘

The power to impose tariffs is ‘very clear[ly] … a branch of the taxing power.’ ‘A tariff,’ after all, ‘is a tax levied on imported goods and services.’ And tariffs ‘raise[] revenue’ — the defining feature of a tax
…
Recognizing the taxing power’s unique importance, and having just fought a revolution motivated in large part by ‘taxation without representation,’ the Framers gave Congress ‘alone … access to the pockets of the people.’ see also Declaration of Independence ¶19[sic]. … They did not vest any part of the taxing power in the Executive Branch.”

“We are therefore skeptical that in IEEPA — and IEEPA alone — Congress hid a delegation of its birth-right power to tax within the quotidian power to ‘regulate.'”

— Chief Justice John G. Roberts Jr. (W. Bush appointee) — IEEPA as a basis for presidential tariff power (link to Supreme Court opinion)

Air Force One

 

Anyone with eyes could tell you the ex-Qatari plane lacks the same countermeasures, as I explained in this video for @Independent https://t.co/sAhaeNuWRi pic.twitter.com/UQLjZygSjg

— Andrew Feinberg (@AndrewFeinberg) July 11, 2026

Goodbye, Humphrey's Executor

Many posts have discussed regulation and the administrative state. 

Amy Howe at SCOTUSblog:

The Supreme Court on Monday gave President Donald Trump sweeping new authority over approximately two dozen multi-member agencies that Congress intended to be independent. By a vote of 6-3, the justices struck down a federal law that bars the president from firing members of the Federal Trade Commission except in cases of “inefficiency, neglect of duty, or malfeasance in office.” That law, a majority of the justices ruled, violates the constitutional separation of powers between the three branches of government. And in reaching that decision, the court overruled its 91-year-old decision in Humphrey’s Executor v. United States, which had upheld the law at the center of the dispute.

More broadly, Monday’s decision was a major victory for proponents of the “unitary executive” theory – the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers.

Writing for the majority, Chief Justice John Roberts contended that “the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”

Justice Sonia Sotomayor penned a 49-page dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson. “Today,” she wrote, “the Court discards” the “democratic regime” created by the Constitution “in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result,” she concluded, “is a President who emerges with far greater power than ever before.”

Presidential Power, June 2026

 Article II

The executive Power shall be vested in a President of the United States of America. ...

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...


He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

... 

[He] shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Use of Force

Plenty of precedent: CRS counts 469 foreign interventions between 1798 and 2022.

Dueling Lincoln Quotations

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, is to and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose– and you allow him to make war at pleasure ...This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." -- letter to William Herndon, February 15, 1848

"Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation." --letter to Albert G. Hodges, April 4, 1864

Since January 20, 2025: Iran, Venezuela,counterterrorism Strikes in Iraq, Nigeria, and Somalia.

Executive Orders

Executive Clemency

Investigation and Prosecution

• James Comey, Letitia James, Jerome Powell
• John Bolton:  pleading to one count of mishandling classified information.
• Universities and funding
• Law firms representing Trump adversaries: contracts
• Media companies and FCC license threats

Soft Power:  "Power to Persuade"

Overall approval

Constraints on Presidential War Power

Many posts have discussed war powers and the US military.

Matt Glassman:

My view, as discussed last week, is that presidential warmaking is an almost wholly political issue, rather than a legal one. No court is going to stop a war.

That said, I think may people hear "wholly political" and just assume that the president has a free hand to do whatever he/she wants. I completely disagree. In fact, presidents are incredibly constrained by politics when it comes to war.

Take Trump and Iran. What are some of the major political constraints:

1. Military capacity
2. Cooperation of allies
3. Reaction of foreign adversaries
4. Reaction of markets
5. Congressional opinion
6. American public opinion
7. Partisan/base opinion

The first two---military capacity and ally cooperation---are straightforward; they are essentially supply-side constraints. Presidents can only go to war with the military Congress provides. Ditto with allies; absent the ability to use airspace and foreign bases, some operations become impossible. And it's always better to have a coalition of nations fighting the war than going it alone.

The third and fourth items on the list---foreign and market reactions---are constraints because they create immediate negative feedback, political and economic. Trump can't just nuke Tehran because that could easily trigger an escalation to global war, and WW3 with China is a bad outcome. Similarly, now that Iran has closed the strait and oil prices are spiking, the economic costs of the war may soon exceed the benefits, encouraging the president to seek a diplomatic off-ramp.

The final three items---opinions in Congress, the public, and the president's party---are the most purely political. These matter because the president has goals other than the objectives of the war, and negative opinions about the war will inevitably spill over to future political goals, whether they are policy, electoral, or egoist.

Profiting from Public Office

Many posts have discussed political corruption.

Jim VandeHei and Mike Allen at Axios:

Imagine America put these questions to a public referendum:

1. Presidents and their family members, unlike other U.S. citizens, shall be granted lifetime immunity from federal audits and criminal investigations of their past tax returns.
2. Presidents and their family members can maintain active ownership of global business empires, profiting when government decisions directly benefit those specific businesses.
3. Presidents, while in office, can maintain massive personal crypto and stock portfolios that buy and sell hundreds of millions of dollars in industries directly regulated by their own administration.

How would you vote?It's hard to imagine more than single-digit support for any of these. Yet Trump is doing all three and paving the way for future presidents to do the same. That's why precedents by presidents often matter as much as laws themselves.

Between the lines: This is more than just a Trump problem. Look at the astonishing number of lawmakers trading and making money off stocks, often with insider knowledge of looming congressional action.

Federal Boards and Commissions: the Partisanship Issue

Many posts have discussed regulation and the administrative state. 

Chris Piper at the Partnership for Public Service:

Since returning to office, Trump has systematically targeted Democratic members of partisan-balanced boards and commissions. Now, nearly 40% of partisan-balanced boards and commissions have no Democratic members at all. This represents a rapid and historically unprecedented shift in the composition of bodies Congress designed to operate with bipartisan representation.

Of the 33 full-time boards and commissions, 23 include some form of partisan balancing requirement, typically limiting any one party to a bare majority of seats.

Partisan balancing requirements were designed not just to ensure representation, but to force internal contestation—replacing unilateral decision-making with structured disagreement and consensus building. Beyond cross-partisan deliberation, Congress has viewed partisan balancing as an “important restraint on the President from filling every commission seat with Administration partisans.”

In practice, presidents of both parties have historically maintained opposition-party representation, replacing members gradually as terms expired and often renominating incumbents. The Senate reinforced this practice through a long-standing norm of considering nominees to boards and commissions in bipartisan pairs. For example, through 2020, roughly 90% of Federal Election Commission members were confirmed this way.

Trump has abandoned these norms entirely. Since returning to office, he has fired or attempted to fire 16 Democratic members across 11 partisan-balanced boards and commissions while declining to nominate Democratic replacements. Over the same period, 12 new Republican members have been confirmed and zero Democrats.

Presidential Power

Many posts have discussed the presidency.

Bruce Mehlman:

 

SO WHAT: However the Iran War ends, it has already changed the world. Every government now faces the same calculation: spend heavily on resilience — energy, infrastructure, defense industrial base — or accept dependence on rivals. Most will spend. Expect higher debt, harder borders, and a louder nationalism in every capital.

War and Algebra

Many posts have discussed war powers and the US military.

 Yonatan Touval at NYT:

This is the recurring illusion of overequipped leaders: Because they can map the battle space, they think they understand the war. But war is never merely a technical contest. It is shaped by grievance, sacred narrative, the memory of past humiliations and the desire for revenge. Those are not atmospheric complications added to an otherwise technical enterprise. They are what the war is about.

So the familiar errors appear. The war planners imagine that a regime can be decapitated into collapse, whereas external attack often does the opposite — binding a battered state more tightly to a society newly united by injury, humiliation and rage. They imagine that destroying conventional assets would settle the matter, as if legitimacy, wounded sovereignty and collective anger were secondary rather than the war’s actual terrain. Planners who took their adversary’s self-understanding seriously — rather than discounting it as propaganda — might have anticipated that an attack would not weaken the regime’s narrative but instead fulfill it. They might also have foreseen the paradox that systematic decapitation does not produce negotiators. It removes them.

The military theorist Carl von Clausewitz long ago recognized the delusion of reducing war to a kind of algebra. War, as he understood it, is never merely calculation. It is saturated with passion, uncertainty and political purpose. The algebra has grown more sophisticated. But the delusion is just as dangerous today as it was in the 19th century.

What this war exposes, then, is a failure not only of strategy but of literacy. Literature and history, at their most serious, train precisely the faculties these leaders lack: the capacity to grant that other minds are not transparent to us, and are governed by purposes not our own. A mind tutored by history and literature knows that actors in the grip of a sacred cause tend to mean what they say — and that bombing a founding myth is more likely to consecrate it than to dissolve it.

Cultural knowledge, of course, rarely prevents the catastrophes of war.

Athens at the height of its golden age sailed for Syracuse and lost an empire. Thucydides spent the rest of his life explaining why. The generals of 1914 were cultivated, well-read men, but those qualities did not save Europe. What has changed is not that culture once prevented blindness and no longer does. It is that culture has increasingly ceded authority to systems that mistake information for understanding and speed for judgment.

Presidential Power

Article II

The executive Power shall be vested in a President of the United States of America. ...

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...


He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

... 

[He] shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Use of Force

CRS counts 469 foreign interventions between 1798 and 2022.

Dueling Lincoln Quotations

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, is to and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose– and you allow him to make war at pleasure ...This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." -- letter to William Herndon, February 15, 1848

"Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation." --letter to Albert G. Hodges, April 4, 1864

Since January 20, 2025:

• Iran
• Venezuela: boat bombings and capture of Maduro):
• Yemen: Air strikes against Houthi militants
• Counterterrorism Strikes in Iraq, Nigeria, and Somalia.

The president has a totally unchecked power to start a nuclear war.  The process exists to authenticate the president's commands, not to challenge them.

• The football

Executive Orders

Pardons

Investigation and Prosecution

• James Comey: charges of making false statements to Congress and obstruction related to his 2020 testimony. The indictment was dismissed.
• John Bolton: indictment for alleged unauthorized retention and transmission of classified information.
• Letitia James New York Attorney General indicted in October 2025 on bank fraud and false statements charges. Case dismissed.
• Jerome H. Powell said DOJ as opened a criminal investigation into Powell; prosecutors are looking at cost overruns.Threats: Regulatory Action and Funding
• Universities and funding
• Law firms representing Trump adversaries: contracts
• Media companies and FCC license threats

Soft Power:  "Power to Persuade"

Support from congressional Republicans and One Big Beautiful Bill

The Limits of Power

Courts Checking POTUS

Many posts have discussed the independence of the judiciary.

Michael S. Schmidt and Alan Feuer:

A judge has thrown out two of their most high-profile indictments.

Grand juries have repeatedly refused to charge those they are targeting.

And now, in the wake of a lacerating ruling by a federal judge derailing an inquiry into the Federal Reserve chair, Jerome H. Powell, officials at the Justice Department have encountered an even more profound problem: Prosecutors are floundering in the most basic steps of criminal investigations into those President Trump wants scrutinized.

The latest setback in the president’s retribution campaign came on Friday when Judge James E. Boasberg of Federal District Court in Washington quashed grand jury subpoenas to the central bank for information about the renovations underway at its headquarters and Mr. Powell’s testimony to Congress about them.

The U.S. attorney overseeing the case, Mr. Trump’s longtime friend and ally Jeanine Pirro, has vowed to appeal the decision and cast Judge Boasberg, who has clashed with the Trump administration, as an activist. And an appeals court could ultimately overturn the decision.

...

As a general rule, prosecutors are given great leeway in issuing grand jury subpoenas, a common tool in the early stages of investigations. Unlike search warrants, they do not require a finding of probable cause by a judge that there might be evidence a crime was committed.

But Judge Boasberg found that Ms. Pirro’s office did not even meet the extremely low threshold needed to send the subpoenas, ruling there was “essentially zero evidence to suspect Chair Powell of a crime.”

...

Judge Boasberg explicitly acknowledged the reality of Mr. Trump’s revenge campaign, writing that the president had urged the Justice Department to investigate his adversaries and adding that the department’s prosecutors had listened. In and of itself, it was an extraordinary acknowledgment. Citing a Supreme Court case, he wrote that “judges ‘are not required to exhibit a naïveté from which ordinary citizens are free.’”

JUST IN: Trump unleashes two big rants against #SCOTUS & Boasberg, judge who blocked the Powell grand jury subpoena. Trump's deep-seated grudge against the justices is clear, particularly for not intervening in 2020 election pic.twitter.com/7d9rPknrmL

— Josh Gerstein (@joshgerstein) March 16, 2026

The Dog That Didn't Wag: War Without Rally

Many posts have discussed war powers and the US military.

Peter Baker at NYT:

President Trump likes to assert that he has accomplished things no other president has. With the opening of his military assault against Iran, he has achieved another distinction: He is the first president in the era of modern polling to take the United States to war without the support of the public.

Traditionally, Americans stand behind their president when he first orders troops into battle, generally sticking with him unless it drags on, casualties mount and victory seems increasingly elusive. With Mr. Trump’s war against Iran, the public has skipped the rally-around-the-president phase this time.

Support for his ferocious bombardment of Iran has ranged from 27 percent in a Reuters/Ipsos poll to 41 percent in a CNN survey, far below the level of public backing that Mr. Trump’s predecessors initially enjoyed when they used force overseas. Given that wars tend to grow less popular over time, the initial negative response portends political challenges for Mr. Trump and his fellow Republicans the longer the fighting continues.

The opposition is revealing about this particular moment in American history. A country already tired of decades of combat in the Middle East has shown little appetite for yet another adventure abroad. And the deep polarization of American politics only makes it harder to build support across lines. Even some Americans sympathetic to the goal of toppling the repressive, terrorist-sponsoring government in Tehran find it difficult to embrace Mr. Trump as commander in chief.

Gorsuch on Tariffs, Deliberation, and the Separation of Powers

Many posts have discussed the presidency.

By a 6-3 vote, SCOTUS ruled that President Trump exceeded his authority under the 1977 International Emergency Economic Powers Act (IEEPA) to impose tariffs.

Justice Gorsuch's Concurrence in  Learning Resources Inc. v. Trump:

And, of course, it was duties on foreign tea that triggered the Boston Tea Party. J. Ellis, The Cause 17–18 (2021). Are we really to believe that the patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative?

...

For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason.  Yes, legislating can be hard and take time.  And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design.  Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.  There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.  And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future.  For some today, the weight of those virtues is apparent. For others, it may not seem so obvious.  But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is. 

The Limits of Presidential Power

Many posts have discussed the presidency.

Peter Wallison at SCOTUSBlog:

There is no sense in which the presidency – finally created as a single person after months of debate near the very end of the Convention – was considered by anyone at the Convention as “directly accountable to the people.” In fact, the idea that the president would be responsible to voters is exactly what the Convention delegates wanted to avoid. They did not want the president to be able to claim he was responsible to the people. That, to them, was the foundation for dictatorial behavior.

To prevent just such a development, the Convention created an early form of the Electoral College to cut the connection between the popular vote and the election of the president, foreclosing an opportunity for the president to claim the very type of power that the Seila Law court contemplates – as an “elected monarch” or a dictator – if he were to be directly elected by a popular vote. After all, the Constitutional Convention occurred only 11 years after the colonies freed themselves from King George III, and creating another powerful ruler was out of the question.

...

Based on the history described above, as well as the text of the Constitution itself, there is strong evidence that although the delegates at the Constitutional Convention considered the president as an essential office, it was only for the purpose of administering – not controlling – the government they were in the process of creating. That’s why the powers of the president in Article II are limited to commander-in-chief of the armed forces, making foreign treaties with the advice and consent of the Senate, appointing other officials, and taking “care that the laws be faithfully executed.” There was nothing at all suggesting that the president should control executive personnel or make policy in the way he does today. Indeed, according to Section 2 of Article II, the president “may require the opinion, in writing, of the principal officer of each of the executive departments” – an authority that would be unnecessary if the Constitutional Convention had thought he was intended to control all of the executive’s departments.

Nor does the “vesting clause” in Article II of the Constitution, which states that “[t]he executive power shall be vested in a President of the United States” give him any such power. This was solely to allow the president to carry legislation into effect and was tempered by his limited powers.

Gallup and the Business of Polling

 Many posts have discussed the problems of surveying public opinion in the 21st century.

Natalie Jackson at National Journal explains why Gallup has stopped polling presidential approval after decades of doing so.  She writes that Gallup was still conducting such polls by telephone, including cellphones -- an expensive practice.

Unlike many public pollsters who use expensive, high-quality methodologies, Gallup is a for-profit company. This is not your grandparents’ Gallup—it has evolved into a global research consultancy. Its website advertises services for clients with nary a mention of U.S. politics.

It’s worth mentioning Gallup has a lot of federal contracts, which could factor into a business decision about presidential approval with a president who likes to sue pollsters. The benefits of publishing presidential approval numbers might still outweigh the risks if there were money to be made from doing it. Yet that isn’t the case in today’s political polling environment. From a business perspective, it is an expensive money drain.

Other pollsters using expensive methodologies—mostly colleges and universities, media, or nonprofits—are not dependent on turning a profit directly from their polling. They are trying to generate attention, clicks, ratings, or reputational perks, or simply provide a public service. Some private pollsters release data publicly so that they will be listed in aggregates to bolster their name recognition. Gallup doesn’t need to do that.

Presidential approval numbers, in particular, are worth less than they used to be. Every poll gets put into aggregates with dozens of other surveys and is forgotten about within a few hours. Every now and then, Gallup’s numbers get widespread attention as a new high or low, but we are decades past the time when the company was offering something in its approval ratings that couldn’t be found elsewhere—except for the decades’ worth of comparative data going back to the Franklin D. Roosevelt administration.

Gallup’s decision isn’t out of nowhere. The company has pulled back from public political polling over the last decade or so, including its decision in 2015 to no longer survey on the presidential election horse race after underestimating the strength of President Obama’s 2012 reelection win. Pew Research also discontinued releasing horse-race questions for the 2016 race, explicitly saying, “Putting resources toward an already saturated market doesn’t make much sense for us.”

Essentially, both Gallup and Pew made a calculation: Why take on the reputational risk of a miss when so many other polls are out there? By 2015, the prevailing logic had become to ignore individual polls and look at aggregates and forecasts anyway.

George W. on George W.

Many posts have discussed the presidency.

President George W. Bush at In Pursuit:

Few qualities have inspired me more than Washington’s humility. I have studied the corrupting nature of power, and how retaining power for power’s sake has infected politics for generations. Our first president could have remained all-powerful, but twice he chose not to. In so doing, he set a standard for all presidents to live up to. His life, with all its flaws and achievements, should be studied by all who aspire to leadership. George Washington’s humility in giving up power willingly remains among the most consequential decisions and important examples in American politics.

After leading the United States to victory over Great Britain in the Revolutionary War, George Washington was at the height of his power. Some suggested that he should become king. Instead, General Washington resigned his military commission in 1783. When King George III of Great Britain learned of his vanquisher’s intentions, he reportedly said, “If He did, He will be the greatest man in the world.” What Washington did on that cold December afternoon in Annapolis shaped the foundation and future of American democracy. And he was just getting started.

CMC Connects: Presidential Power in 2026

Hard Power

Executive Orders

Personnel

• Net reduction of 242,260 employees
• Political and ideological considerations
• SCOTUS case on the FTC

Pardons

Use of Force

CRS counts 469 foreign interventions between 1798 and 2022

Since January 20, 2025:

• Venezuela: boat bombings and capture of Maduro):
• Iran: Airstrikes on nuclear facilities 
• Yemen: Air strikes against Houthi militants
• Counterterrorism Strikes in Iraq, Nigeria, and Somalia.

Domestic use of National Guard, CBP, and ICE

Investigation and Prosecution

• James Comey: charges of making false statements to Congress and obstruction related to his 2020 testimony. The indictment was  dismissed.
• John Bolton: indictment for alleged unauthorized retention and transmission of classified information.
• Letitia James New York Attorney General indicted in October 2025 on bank fraud and false statements charges.  Case dismissed. 
•  Jerome H. Powell said DOJ as opened a criminal investigation into Powell; prosecutors are looking at cost overruns.

Threats: Regulatory Action and Funding

• Universities and funding
• Law firms representing Trump adversaries:  contracts
• Media companies and FCC license threats

Soft Power:  "Power to Persuade"

Support from congressional Republicans and One Big Beautiful Bill

Public approval is down