The United States’ democracy is at risk, according to constitutional law expert Erwin Chemerinsky.
Chemerinsky said Monday night at the University of Houston Law School that presidential power has gradually increased over the last 100 years, weakening congressional and judicial oversight.
“I would suggest to you that American history tells us is that when we abandon the structure that the framers intended, that often leads to disaster,” Chemerinsky said during his keynote speech titled “Constitutional Separation of Powers.” He said his lecture, which was broadcast online, was not about the Trump presidency, but he did talk about recent executive orders, the firing of administrative employees, and impounding funds.
Chemerinsky, dean of the University of California, Berkeley Law School, has written 20 books and authored more than 200 law review articles. His latest book is “No Democracy Lasts Forever: How the Constitution Threatens the United States.” He said a University of Houston Law School lecture inspired the book and that his latest lecture would inspire a new book on presidential power.
“James Madison in Federalist Number 10 says the accumulation of all powers executive, legislative, and judicial in the same hands is the very definition of tyranny,” Chemerinsky said.
During his talk, Chemerinsky detailed how presidential power has grown through administrative agencies, expanded war-making capabilities, and an increasingly broad interpretation of executive privileges.
Chemerinsky said Harvard historian Arthur M. Schlesinger Jr. wrote a best-selling book titled “The Imperial Presidency” in 1973. During those years, Richard Nixon was trying to expand the scope of presidential power.
“Today, 50 years later, we’re again talking about the question of the scope of presidential powers,” he said.
In particular, Chemerinsky pointed to the rise of the Unitary Executive Theory, which states that the president has sole authority over the executive branch.
Recent judicial decisions have granted presidents increased immunity from civil and criminal prosecution and that can expand their powers. In the case of Trump v. the United States from July 1, 2024, at one point in the majority opinion, U.S. Supreme Court Chief Justice John Roberts says that under the Constitution, the president is the only person who’s an entire branch of government. That is very much addressing the philosophy of the Unitary Executive Theory. So it’s all of this that leads to what President Trump is claiming now, Chemerinsky said.
“President Trump is claiming that he has the authority to fire any heads of agencies notwithstanding federal statutes,” he said. “A second thing we’re seeing from the Trump administration is a claim of an ability to impound federal funds.”
In 1974, Congress passed the Impoundment Control Act, which prohibits Presidential impoundment of funds. But on January 27th, President Trump froze as much as $3 trillion in federal funds, claiming the authority to impound funds, Chemerinsky said.
Presidential power has grown significantly in the past century as congressional and judicial checks have weakened. This growth is due to administrative agencies, changes in war-making power, post-9/11 national security expansion, and political polarization.
Chemerinsky said the forces of the 20th century led to greater centralization of power, with the Great Depression, World War II, and the Cold War leading to more centralized control. These forces have continued.
Chemerinsky cited other historical examples of presidential overreach, including controversial actions taken by presidents, such as Franklin D. Roosevelt’s Japanese internment during World War II. President Roosevelt ordered 110,000 Japanese Americans to be uprooted from their homes and placed in concentration camps. “Not one Japanese American was ever indicted or
convicted of espionage or crime against national security. This was entirely done by presidential executive order,” Chemerinsky said.
After 9/11, President George W. Bush’s administration issued the torture memos that authorized extreme interrogation tactics. Two branches of government weren’t involved, and there’s no indication that the torture they engaged in in any way did anything to protect national security, Chemerinsky said.
“We’ve seen an increase in presidential power at the same time losing a decrease in checks and balances, and this is what I think has brought us to the current Trump presidency,” Chemerinsky said.
President Trump has issued more executive orders in the first 60 days in office than most presidents do in four- or eight-year terms, Chemerinsky said. Recent executive orders have targeted immigration and challenged congressional appropriations.
“If the president can violate court orders, then there’s no limit on what the president could do,” Chemerinsky said. It’s a potential threat to the rule of law, he said.
“So, what happens if the president says, ‘I’m going to defy court orders and circumvent any contempt power in the ways that I describe?’ Then we have a constitutional crisis like we’ve never seen before in American history, and then the question is, would that be enough for Congress to impeach?'” Chemerinsky said.
He said that throughout American history, Republican and Democratic presidents have complied with court orders even when they strongly disagree with them.
“Another question is what do the American people do under those circumstances? Because if the president can violate the constitution and ignore court orders, then the president can lock up me or anybody else and then ship us to El Salvador,” he said.
To rebalance power, Chemerinsky proposed the judiciary check presidential overreach and called for Congress to reassert its constitutional responsibilities.
Chemerinsky said, “If our democracy is going to survive if the rule of law is withheld, it will be because of the efforts of lawyers and judges.”