Persuasion
The Hyper-Presidency
Taking stock of Trump’s radical experiment with executive power.
Tom Ginsburg
Jul 2, 2025
U.S. President Donald Trump on July 1, 2025. (Photo by Anna Moneymaker/Getty Images.)
Five months into his second term, it is clear that Donald Trump is trying to remake American executive power in fundamental ways. He has taken a series of actions that openly violate the law, and complied with court orders only begrudgingly, often with significant foot-dragging. Meanwhile, he is undermining the authority of the courts rhetorically. The result is not a clear “constitutional crisis,” but instead an erosion of the system of checks and balances that underpins our constitutional order. It offers a vision of executive power that is outsized and personal, and will leave a poisonous legacy.
Comparative politics scholars call such systems “hyper-presidential.” This term is used to describe systems in Latin America and the post-Soviet space in which presidential power is so great as to be effectively immune from checks and balances. The core idea goes back to the work of Yale political scientist Juan Linz in the 1990s. Linz was a fierce critic of presidential systems, arguing that they encourage winner-take-all elections and populism, which can “bring on a refusal to acknowledge the limits of the mandate.” In Linz’s view, this risk is exacerbated by the possibility of gridlock introduced by the separation of powers. If Congress inhibits a president’s agenda, the system may be unable to deliver on promises made during the campaign, leading the president to seek workarounds or bypasses to constitutional constraints. Examples include a resort to emergency rule or using the power of executive decree as a substitute for legislation. Sometimes presidents will also pack the courts to obtain supportive rulings, or disable independent checks on their power.
There have been many signs that the second Trump administration is building a hyper-presidential system.
For example, Trump has sought to cajole private institutions into submission, with law firms and universities at the top of the list. Most notable were the deals reached with top law firms, in which they pledged to do pro bono work for the White House’s favorite causes as punishment for representing clients opposed to the Trump administration. These pledges were obtained in the shadow of a patently illegal threat to bar private law firms from government buildings. The few firms that resisted the threats won quick reprieves in court, embarrassing those who had made deals. The result is an elite legal profession that is divided.
Universities, too, have been in the crosshairs, with the administration attempting to compel institutions such as Harvard and Columbia to comply with an ever-shifting set of demands in the wake of anti-Israel and pro-Hamas protests. Last week’s resignation of University of Virginia President James Ryan after pressure from the Trump administration to dismantle the university’s diversity, equity and inclusion programs will only embolden the government further.
The administration has also waged war against the administrative state, undertaking multiple moves to make federal workers easier to fire. It fired Gwynne Wilcox, Chair of the National Labor Relations Board, within days of coming into office. The statute setting up the Board allows firing only for cause, and so the firing contradicts the 1935 Supreme Court case Humphrey’s Executor v. United States, which insulates agency appointees from ideologically-motivated removal. Litigation is ongoing, but if the Supreme Court upholds Trump’s action—and overturns Humphrey’s Executor—the American state and many of its top personnel will be subject to direct presidential manipulation in a way not seen for nearly a century.
Also in the president’s crosshairs is the independence of government agencies. Drawing on a constitutional theory known as the “unitary executive,” which holds that the president must personally direct all executive power, the administration issued an Executive Order that subjects regulatory agencies to presidential control—including forcing them to adhere to the White House or Attorney General’s legal interpretations of their own statutes. Since the 1930s, many government agencies have been able to make independent decisions about policy within the scope of authority granted by Congress. Courts used to defer to agency expertise, but a recent Supreme Court case, Loper Bright Enterprises v. Raimondo, has opened the door for the president to direct interpretation much more directly.
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Meanwhile, the administration has asserted the authority to impound funds that had been appropriated by Congress, in direct violation of the Impoundment Control Act of 1974. It has sought to unilaterally dismantle congressionally-authorized entities, including the Consumer Financial Products Bureau, the U.S. Institute for Peace, and the National Endowment for the Humanities. And it has fired inspectors general (responsible for overseeing government agencies) from several departments, again in violation of federal law.
Finally, the president has been hyperactive in the realm of foreign policy. While the recent bombing of Iran without prior congressional approval reflects a longstanding pattern of behavior by presidents of both parties, the casual imposition of massive tariffs reflects a truly novel understanding of the law. Fitting a pattern of hyper-presidentialism seen in other countries, Trump invoked the idea of a national emergency to justify his actions and unilaterally impose steep tariffs. No other president has deployed tariffs as a routine tool of foreign policy in this way.
This series of actions has led to a massive amount of litigation. Thankfully, federal judges, even those appointed by President Trump, have so far proven willing to uphold the law. When faced with clear orders to comply, the administration eventually does so. The recent return to America of Kilmer Ábrego García, the man accused of gang links who was accidentally deported to El Salvador, was a very important test case in this regard.
But courts are slow, and many of the cases being litigated may take years to resolve. Furthermore, last week the Supreme Court ended the practice of lower courts issuing “universal injunctions”—meaning that, from now on, courts can only protect people who are directly party to a lawsuit from being subjected to a purportedly illegal policy. Here the hyperactivity of the administration, along with its ability to impose great costs on private actors while cases proceed, gives it tremendous leverage. And the silence of Congress, controlled as it is by Trump’s party, is deafening.
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The consequences of hyper-presidentialism are not pretty, as the checkered democratic history of Latin America shows. The reasons are easy to understand. Democracy requires rotation in office, which means the stakes of competition must be significant but not too high. If there is too much power in the office, no one will ever give it up. When control over the presidency means acquiring the ability to single out individuals and organizations for punishment, to determine spending in violation of law, and to close government agencies unilaterally, will today’s Republicans really be willing to hand it over to a future president-elect from the other party?
Our democratic survival requires that the presidency be brought back under the system of checks and balances that the Founders envisaged. They would ask no less of us.
Tom Ginsburg is the Leo Spitz Professor of International Law and Faculty Director of the Forum on Free Inquiry and Expression at the University of Chicago.
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