A collaboration between Lewis McLain & AI
Introduction: The Return of the Old Question
Every generation of Americans must rediscover a truth the founders assumed self-evident: power left unchecked eventually seeks to rule. The United States Constitution was built upon friction—the deliberate tension among the legislative, executive, and judicial branches—because the framers knew that virtue without restraint would decay into tyranny.
In 2025, that fragile balance is once again being tested. The Supreme Court’s recent term has thrust the nation into a constitutional reckoning over the limits of presidential authority, the independence of federal agencies, and the reach of a bureaucracy so vast that it has become a government unto itself (The Deep State). Beneath the headlines of court cases and executive orders lies an older struggle: who governs America—the people, their elected president, or the permanent state that outlasts them both?
I. The Pendulum of Power: From George Washington to Donald Trump
American history is a chronicle of oscillating authority. George Washington set the precedent of restraint, rejecting monarchy and leaving office after two terms. Andrew Jackson defied the Supreme Court, daring Chief Justice John Marshall to enforce his rulings. Abraham Lincoln suspended habeas corpus in wartime, later admitting he had stretched the Constitution “as far as I dared.”
Franklin Roosevelt, frustrated by a conservative Court blocking his New Deal, proposed expanding its membership—an audacious plan that failed politically but succeeded psychologically: the Court soon bent toward broader federal power. Nixon’s abuse of executive privilege provoked the congressional and judicial pushback of the 1970s, creating the Independent Counsel Act and sunshine laws.
Then came the Reagan-Bush revival of the unitary executive theory, seeking to reclaim presidential control over a bureaucracy that had become increasingly independent since the 1930s. By the time Donald Trump entered office, this constitutional pendulum had already swung through centuries of tension between energetic leadership and institutional resistance. Trump’s presidency merely accelerated the rhythm—reviving the oldest American argument of all: Can one man truly govern the government?
II. The New Flashpoint: Trump v. Slaughter and the Unitary Executive
At the center of today’s storm is Trump v. Slaughter, a case challenging whether the President may remove a Federal Trade Commission commissioner “without cause.” The stakes are profound. For ninety years, Humphrey’s Executor v. United States (1935) has protected independent agencies like the FTC, SEC, and Federal Reserve from direct political interference. Commissioners could be dismissed only for misconduct or neglect, ensuring a measure of stability across changing administrations.
The Trump administration contends that such protections violate Article II’s command that “the executive Power shall be vested in a President.” Their argument—the unitary executive theory—holds that all officers who exercise executive functions must answer to the President alone. Anything less fragments accountability and undermines electoral legitimacy.
Critics respond that independence is the only safeguard against politicized enforcement, crony capitalism, and authoritarian control. The Supreme Court’s eventual ruling will determine whether the alphabet soup of federal agencies remains semi-autonomous or becomes an extension of the Oval Office. Either outcome will redefine the machinery of governance for decades.
(Holland & Knight, Sept 2025)
III. The Deep State and the Administrative Leviathan
Beneath this legal argument lies a deeper cultural suspicion—that a “Deep State” of career officials, regulators, and policy staff wields power beyond democratic reach. The term is controversial, often misused, but it points to a real structural dilemma.
Since the Progressive Era, Congress has delegated vast lawmaking authority to expert agencies. Today, more than 430 departments and commissions issue rules, adjudicate disputes, and spend trillions—often with minimal congressional oversight. Presidents come and go; the civil service endures. Policies shift at the margins, but the bureaucracy’s gravitational pull tends toward self-preservation.
To many Americans, that permanence feels like insulation from accountability. They see unelected administrators shaping environmental, labor, financial, and education policy with little input from voters. To others, this continuity is what keeps the system functioning—a professional corps that tempers political extremes and maintains order.
The Supreme Court’s willingness to let presidents reassert control over this structure represents both a correction and a risk. Reining in an unresponsive bureaucracy may restore responsiveness—or, if unchecked, it could replace quiet inertia with politicized command. The choice is between two dangers: the tyranny of permanence or the tyranny of immediacy.
III-A. The Necessary Reckoning with Waste, Fraud, and Abuse
For all the rhetoric, there is truth behind the charge that Washington’s bureaucracy has grown beyond effective oversight. Auditors and inspectors general routinely document programs that continue long after their purpose has vanished—subsidies whose beneficiaries no longer exist, grant streams that duplicate one another, and contracts written to sustain offices rather than results.
Calling that “Deep State” may sound inflammatory, but confronting it is an act of stewardship, not sabotage. Every dollar misspent in procedural self-defense is a dollar not serving the public good. The search for waste, fraud, and abuse is therefore not a crusade against government itself but a demand for integrity within it.
Reform, however, must distinguish between pruning and burning. Some functions deserve close study before reduction—scientific research, national security intelligence, and infrastructure oversight, for example, where expertise matters. Others, such as overlapping compliance offices, outdated subsidy programs, or redundant regional authorities, can be consolidated or sunset with minimal harm.
What the system most lacks is a decision maker. Endless committees defer, delay, and dilute. Real accountability requires someone willing to decide and accept responsibility for the outcome. Whether one admires or dislikes Donald Trump, it is undeniable that his governing style re-centered attention on presidential decisiveness—the notion that leadership means choosing, not perpetually consulting. That instinct, properly harnessed within constitutional limits, is not authoritarian; it is executive in the truest sense of the word. A republic cannot function indefinitely on autopilot.
IV. The Shadow Docket: Power by Emergency
Compounding the uncertainty is the Supreme Court’s increased use of its “shadow docket”—emergency orders issued without full briefing or oral argument. Once rare, such rulings have become routine. This summer, the Court quietly allowed the administration’s sweeping agency reorganization plan to proceed, overturning lower-court injunctions issued to protect employees and contractors.
(JURIST, July 2025)
Justice Elena Kagan once warned that “we are deciding the law for the country on the basis of hasty midnight filings.” Her dissent now reads as prophecy. The emergency docket was meant for imminent harm—war, executions, public health crises. It has become a backdoor policy tool, shaping immigration, environmental, and administrative law without written justification. If presidential terms were like those of Congress, unlimited, perhaps the urgency to implement executive change and improvements would be different.
Supporters defend it as necessary speed in a paralyzed age. Critics see it as the quiet erosion of due process. Either way, the Court’s silence has become a new form of speech.
V. Other Cases, Same Question
Beyond Slaughter, the pattern repeats. In Trump v. CASA, the administration seeks to limit “universal injunctions”—nationwide orders from single district judges blocking federal policy. Such injunctions, once rare, multiplied during the pandemic and immigration battles. Restricting them would expand executive momentum but shrink judicial brakes.
(CBS News, Oct 2025)
Meanwhile, the Court recently allowed the government to strip Temporary Protected Status from more than 300,000 Venezuelan migrants.
(AP News, Oct 2025)
And it appears ready to overturn Colorado’s ban on “conversion therapy” for minors, citing free-speech concerns—another signal that the current majority favors constitutional literalism over regulatory paternalism.
(The Guardian, Oct 2025)
Each case shares the same undercurrent: whether authority lies with elected officials, appointed experts, or unelected judges.
VI. The Philosophies Behind the Bench
Understanding the conflict requires examining the competing philosophies that guide the Court itself.
- The Unitary Executive View—championed by Justices Thomas and Alito—reads Article II as granting the President direct control over all executive functions. It promises clarity and democratic accountability: voters can blame or reward one person.
- The Separation-with-Independence View—favored by Justices Kagan, Sotomayor, and Jackson—warns that unfiltered power breeds abuse; some insulation is essential to rule-of-law governance.
- The Pragmatic Center—Chief Justice Roberts and Justice Barrett often balance between them, seeking institutional legitimacy above ideology.
This mixture means outcomes hinge not just on constitutional text but on trust—trust that one branch will not devour the others.
VII. The Bureaucracy’s Defense: Expertise and Continuity
Defenders of the administrative state remind critics that modern society is too complex for Congress to micromanage. Food safety, nuclear regulation, cybersecurity—these require technical competence. The civil service system was born from the Pendleton Act of 1883 precisely to eliminate the old patronage corruption.
Yet competence easily hardens into arrogance. When experts treat elected oversight as interference, they risk confirming the populist narrative of an unaccountable elite. The challenge is not to abolish bureaucracy but to restore transparency—sunlight as disinfectant, not fire as weapon.
VIII. The Moral Logic of Restraint
The separation of powers is not a bureaucratic diagram; it is a moral philosophy rooted in realism about human nature. James Madison wrote in Federalist 51: “If men were angels, no government would be necessary.” The founders distrusted concentrated virtue as much as concentrated vice.
Restraint, not efficiency, is the soul of republican government. When Congress delegates away its authority, when presidents govern by emergency order, when courts legislate from chambers, each betrays that founding humility. The system was designed to frustrate power—because liberty grows in the space where power collides with itself. Yet one has to realize that gridlock, the resulting governance we have now, is a ridiculous way to operate.
IX. The New Trilemma: Efficiency, Independence, and Accountability
The old two-way tug between Congress and the President has become a three-way struggle that includes the permanent bureaucracy. Each now claims to represent the public good:
- Presidents promise decisiveness.
- Congress claims deliberation.
- Bureaucrats insist on expertise.
But none alone can secure liberty. Efficiency without oversight becomes autocracy; oversight without execution becomes paralysis; expertise without accountability becomes technocracy. The genius of the American system, some claim, is not that it balances these perfectly, but that it never stops trying.
X. What Lies Ahead
The 2025–2026 Supreme Court term will determine whether the executive branch consolidates or diffuses. Watch for:
- The fate of Trump v. Slaughter and whether Humphrey’s Executor survives.
- Legislative counter-measures—perhaps a new “Agency Independence Act.”
- Public trust in the judiciary, already polarized by perception of partisanship.
- The bureaucratic response: quiet resistance or adaptation under new command.
Every ruling will ripple through daily life—from antitrust enforcement to social-media regulation, from labor standards to immigration policy. The question is not academic. It is existential: who governs when no one agrees who should?
XI. Conclusion: Freedom Needs Responsible Friction But Not Gridlock
The founders built a government that creaks on purpose. Its slowness is its safeguard. In an age addicted to immediacy—executive orders, viral outrage, and emergency rulings—patience itself has traditionally become a form of patriotism. But how could our founders have anticipated the U.S. in 2025?
If presidents claim unlimited control in the name of accountability, if bureaucrats entrench themselves in the name of expertise, if Congress yields its authority for the sake of convenience, and if courts extend their reach in the name of justice, the republic will not be ruled by tyranny but by something quieter and just as dangerous — expedience without principle. When every branch forgets its limits, all branches lose their legitimacy.
Sources and Further Reading
- The Uncertain Future of the Separation of Powers, Regulatory Review (Aug 2025)
- Supreme Court May Restructure the FTC, Holland & Knight (Sept 2025)
- US Supreme Court Allows Trump’s Agency Reorganization, JURIST (July 2025)
- Shadow Docket Explained, SCOTUSblog (Aug 2025)
- Trump v. CASA and Nationwide Injunctions, CBS News (Oct 2025)
Let's Talk About It, Lewis! 