US Politics

What are the Limits of Presidential Power?

October 2025

The slow creep of executive overreach is decades in the making, with each administration testing and stretching the limits of the Constitution in its own way. Today, the checks and balances meant to restrain Presidential authority are eroding, and as we peel the curtain back to unveil the extent of government power, the skeletons within are frightening.

This balance of power between the executive branch and the other two branches of government has shifted dramatically, and this trend has only accelerated during the second Trump administration. Not solely because of executive orders and actions (which definitely play a part), but because of the structural shifts in the judiciary, which have reshaped the Court’s role as a check on the presidency.

If the U.S. continues down this path, we will see the gradual progression and cornering of power in the executive branch. Key Supreme Court cases show just how we got to this point, where policy is shaped by executive actions rather than democratic discussion.

Jordan Kari - Founder, KPI

Judicial Realignment

Historically, Supreme Court decisions and administrative actions have exhibited a fair and logical mindset towards checking executive authority. As we look at prior administrations, this trend appears bipartisan and pervasive.

From President Bush’s post-9/11 expansions of surveillance and military authority to President Obama’s use of drone strikes and immigration deferrals, to President Trump’s tariffs and sweeping immigration crackdowns, each administration has pushed the boundaries of executive power. Although not unique to any administration, the concentration of power in the executive branch should be raising alarm bells. Moreover, following the appointment of three conservative-leaning judges in Trump’s first term, we see a dramatic shift in how the third branch checks the executive.

Just in the last decade, the Supreme Court has expanded the presidency’s legal runway, signaling greater deference to executive action. We’ve seen this in Trump v. Hawaii (2018), which upheld the travel ban, essentially expanding national security powers with minimal oversight. In Selia Law v. CFPB (2020), a decision that weakened limits on presidential control over agencies, consolidated power. Then the landmark case Trump v. United States (2024): granting presumptive immunity for official acts.

All in all, these rulings have played a pivotal role in lowering the costs of overreach while simultaneously raising the ceiling on executive authority. This increase in unilateral power has tilted the balance toward the executive branch and away from Congress.

Executive Orders and Unchecked Power

As Congress continues to surrender more power and the courts stalling, presidents act. Now, Executive Orders (EOs) are the focal point of policy, allowing administrations to sidestep norms and unilaterally shape policy.

Executive Orders

Trump’s staggering 430 EOs to date are not just a surge; it’s a warning sign. This normalization of policymaking from the president sidelines our democracy and allows the presidency to be the main engine of U.S. governance.

In the same vein, actions within the second Trump administration have doubled down on this approach: imposing tariffs without legislative approval, aggressive immigration enforcement, mass firing among the civilian workforce, and that’s just the tip of the iceberg.

All in all, these moves have amounted to a Chilling Effect: a level of fear imposed across the federal government and country, creating a climate where people feel compelled to fall in line or face retaliation.

Moving Forward: Rebuilding Guardrails on Executive Power

Unchecked presidential authority is not an abstract problem; it’s a governance gap. Presidents act because Congress won’t; courts hesitate because Congress didn’t. The result: a system that increasingly orbits the White House, not the people.

A New Structural Guardrail: Executive Review Board

To restore balance, Congress should enact statutory reforms to create an “Executive Review Board” — a politically balanced, quasi-state-federal body composed of members of Congress and state Attorney Generals. This would help provide expedited review of major presidential actions, maintaining a level of transparency while also vetting legal frameworks. Moreover, coordinating with state AGs, could fast-track engagement with federal courts, increasing the likelihood of judicial oversight.

It's not about stripping power from the presidency; it’s about establishing guardrails to ensure that decisions are justified and the government is held accountable.

Policy Actions to Reinforce Balance

The Executive Review Board should be part of a broader strategy to rebalance the separation of powers. Congress must also:

  1. Narrow emergency powers under the National Emergencies Act, requiring reauthorization after 60 days. This would limit the president’s ability to bypass Congress.

  2. Reassert legislative primacy in key regulatory areas like the purse, immigration, and the environment. Restoring power to Congress would remove the ability of the executive to make workforce decisions and maintain a level of separation.

  3. Modernize the War Powers Resolution to limit unilateral military action. This would reaffirm authority to the legislative branch and help with oversight into military activities.

  4. Strengthen administrative capacity so policymaking relies less on the executive. By fostering a culture of accountability and duty in the republic, Congress can effectively instill policy and reduce EO’s ability to shape governance.

Why This Matters

Executive power and big government actions have grown to be a part of our everyday lives. And this is not solely a partisan issue. Both Republican and Democratic administrations have expanded presidential authority, inching the U.S. toward a more centralized authoritarian system, putting our democracy on life support. The time is now to act and work with each other at the state and federal levels to garner a culture based on accountability, duty, and to reinstate the checks and balances our country was founded on.

Restoring balance doesn’t mean weakening the presidency. It means strengthening the Republic. If we want a government that reflects the will of the people, not just the will of one office, the time to act is now.

 

 

Sources

https://harvardlawreview.org/blog/2025/04/president-trump-in-the-era-of-exclusive-powers/

https://constitution.congress.gov/browse/essay/artII-S1-C1-8/ALDE_00013797/

https://constitution.congress.gov/browse/essay/artII-S1-C1-5/ALDE_00013794/

https://constitution.congress.gov/browse/essay/artII-S4-4-7/ALDE_00000695/

https://tile.loc.gov/storage-services/service/ll/usrep/usrep553/usrep553723/usrep553723.pdf

https://constitutioncenter.org/the-constitution/supreme-court-case-library/zivotofsky-v-kerry

https://supreme.justia.com/cases/federal/us/520/681/

https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

https://www.scotusblog.com/cases/case-files/seila-law-llc-v-consumer-financial-protection-bureau/

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

https://www.presidency.ucsb.edu/statistics/data/executive-orders

https://ballotpedia.org/Donald_Trump%27s_executive_orders_and_actions,_2025