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Opinion: To prepare for a possible constitutional crisis, read the Constitution [1]

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Date: 2025-03-20

By Robin Norris

It is fundamental to the constitutional structure of our national government that legislative, executive and judicial powers be assigned to different branches of the government and that each branch stay in its lane. But the current presidential administration is wandering quite a lot into the lanes of others, shutting down agencies and departments of government created by Congress, impounding funds appropriated by Congress to effectuate its policies, and firing officers and employees appointed or hired to carry out those policies.

Support for this expansive exercise of presidential power is the so-called unitary executive theory. According to some of this theory’s proponents, the president has discretion how, and even whether, to implement the will of Congress or to obey the judgments of courts that purport to limit his authority. We are thus at a moment in our history when it is important that all citizens take some time to read and understand the text of the Constitution itself.

First, let’s just concede for purposes of argument the legitimacy of the unitary executive theory under the plain language of the Constitution. As the Supreme Court observed in its recent immunity opinion, the president is an entire branch of government himself. This probably means, as the Constitution expressly provides, that he has all of the executive authority of the United States.

Second, it is equally clear, as the Constitution also expressly provides, that Congress has all of the legislative power of the United States. This means, of course, that the president has no legislative authority at all. Only the Congress can pass laws, and laws are almost the only way that the public policy of the United States can legitimately be made.

Third, the power of the president to fire government officers derives from his power under the Constitution to “take care that the laws be faithfully executed.” But the duty of the president faithfully to execute the laws also means that he has to do what he is told by the Congress. Indeed, the president has almost no other duty under the Constitution. He has other powers, but doing what Congress tells him to do is his main responsibility as America’s executive.

Executives implement the policies made by others, at least under a government in which executive and legislative authority are deliberately vested in separate branches of the government, as they are in ours.

Of course, agencies are problematic under the Constitution no matter how you read it because nearly all of them, to some extent at least, combine within themselves legislative, executive, and judicial practices, apparently in violation of the Constitution’s separation-of-powers structure. But the Supreme Court has settled on a constitutionally acceptable accommodation in which the exercise of each governmental power by an agency is ultimately controlled by the branch of government upon which the Constitution expressly confers that power.

What all of this means is that the president does not have authority to ignore or thwart the public policy commands of the Congress. He cannot abolish or shut down agencies, executive or independent, that have been established by law. He cannot fail to implement the policies of Congress that those agencies were created to accomplish or to spend the money appropriated by Congress for those purposes.

All his power to fire people means is, if he dismisses those who were appointed or hired to help him execute the policy commands of the Congress, he’ll just have to do the job himself, because he is required by the Constitution and his oath of office to “take care that the laws be faithfully executed.”

What this also probably means is that the president may not establish offices of the United States himself or appoint officers to run them without the direction or approval of the Congress. Accordingly, if a person meets the functional definition of “officer,” he cannot legitimately exercise any executive authority whatsoever without the consent of Congress.

Finally, it is unquestionably the case under the United States Constitution that the Supreme Court has the final word about each of these issues. In spite of some statements by members of the current administration who should know better, the Supreme Court is the final arbiter of what the United States Constitution means.

It has been so since Marbury v. Madison was decided in 1803, and it was still so less than a year ago when the Supreme Court reaffirmed that it is the power and responsibility of the Judicial Branch to “say what the law is,” and that interpretations of the law by the Executive Branch, while entitled to respect, do not bind the judiciary. That’s a mostly Republican-appointed Supreme Court speaking.

We are at a critical crossroads in our nation’s history. What the Supreme Court ultimately decides in the many important cases now making their way through the lower and intermediate federal courts will determine the structure of our government for the foreseeable future.

If the current administration does not comply when the Supreme Court limits the power of the president to ignore or undermine the will of Congress, as it should, there will be a real constitutional crisis in our country. All citizens should be prepared to form an intelligent opinion by getting better acquainted with what our Constitution actually has to say about it. It’s not really a hard read.

Robin Norris is an attorney in El Paso.

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[1] Url: https://elpasomatters.org/2025/03/20/opinion-constitutional-crisis-read-the-constitution/

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