American presidents in the 21st century have been drifting towards populism, displaying a heightened sensitivity toward (and reliance on) public opinion and impulses (at least part of the public). This trend is not wrong in itself, but it unlocks dangerous side effects which, if left unchecked, could spell disaster for our republic. One such side effect is the growing executive tendency to simply do what it likes, regardless of what the law says, and dare anyone to stop it.

Sometimes, those dares are answered. Earlier this year, a coalition of attorneys general from Democrat-led states sued the Trump administration over its unilateral imposition of tariffs on nearly every country in the world. The argument, in a nutshell, was that the U.S. Constitution clearly assigns power over tariffs to Congress, and Congress has not clearly delegated it to the president. On Friday, the U.S. Court of Appeals for the Federal Circuit agreed (7-4) that Trump’s tariffs are not enforceable under the International Emergency Economic Powers Act (IEEPA), which the administration cited as a justification (Trump has until October 14 to appeal to the U.S. Supreme Court).

In a hyper-partisan atmosphere, the ever-present impulse to side with one political “team” can often lead us astray. So, it’s worth considering a similar example with partisan roles reversed.

In 2023, a coalition of attorneys general from Republican-led states sued the Biden administration over its unilateral imposition of student loan forgiveness. The argument, in a nutshell, was that the U.S. Constitution clearly gives Congress power to spend money and accrue debt, and Congress had never delegated to the executive branch the type of widespread loan forgiveness power it tried to exercise. In that case (and others), the U.S. Supreme Court struck down the Biden administration’s various attempts at student loan forgiveness as unconstitutional.

Strangely, many who opposed Biden’s student loan bailout applaud Trump’s tariffs, and many who oppose Trump’s tariffs applauded Biden’s student loan bailout.

But the propriety of executive action does not depend on which party occupies the White House. Even if the majority will were the standard for setting policy, that would legitimize both actions equally. But America is not governed by a party, nor by majority will, but by the Constitution and laws made in accordance with it. The Framers of the Constitution recognized the political strength of the majority will, and so they exercised great care in crafting various checks to restrain its excesses.

Ever since President Barack Obama infamously resorted to “a pen and … a phone” to sidestep Congress in 2014, presidents have become increasingly disinterested in following the letter of the law when enacting their agenda. President Biden earned rebukes from the Supreme Court for everything from a rent moratorium to burdensome climate rules. Cases from the second Trump administration have yet to filter up to the Supreme Court, but the administration has already angered courts by flighty deportation practices.

Trump is also contemplating more executive orders on topics over which he has little evident authority, such as voter ID requirements and housing prices. (Curiously, these issues parallel concerns over policy battles during the Biden administration, such as Biden’s push to get congressional Democrats to effectively federalize elections and the aforementioned rent moratorium.)

This is not to suggest the two administrations are equivalent in every instance or in the degree of their disregard for the law. For instance, a Trump executive order, ostensibly prohibiting flag-burning, stopped short of trampling on what the U.S. Supreme Court has ruled to be protected speech under the First Amendment. Over the last four years, the Biden administration and its progressive allies (perhaps “overlords” is more apt) openly daydreamed about packing the Supreme Court to ram through their agenda.

Nor does this piece suggest that presidents flouting the law is a recent innovation previously unknown in American history. From Andrew Jackson to FDR, there are plenty of historical examples of presidents who insisted on getting their own way, no matter what the law or the courts said. Even Abraham Lincoln had to suspend laws amid the exigencies of civil war. By his own admission (or at least his own interpretation), Thomas Jefferson violated the Constitution to secure the Louisiana Purchase.

What these facts do suggest is that we now live in the age of the imperial presidency, in which a single man, bolstered by the demagogic powers afforded by a century of advancements in mass communication, commands an army of bureaucrats to do his bidding. Before the might of the executive leviathan, old-fashioned courts and a faction-riven Congress seem puny indeed.

There are structural changes that could ameliorate the imbalance of power. For instance, in the rare moments when Congress disapproves of an agency rule or other executive action that contradicts their expressed intent, the president who ordered that executive action should not have veto power over Congress’s ability to express disapproval.

However, the larger corrective must come from the people themselves. In any elected system of government, the buck always stops with the people. It is from the people that the president derives his moral authority to act as a national leader, independent of the other branches. Therefore, it is the people who act as the final check on the imperial presidency. It is the people who must demand a restrained executive that acts within the bounds of its proper constitutional authority.

What does this authority look like? One that remains tolerable from one administration to the next. Presidents should remember that any new power they claim can be used by their enemies the next time the winds of public opinion shift.

President Trump already knows from personal experience what oppression results when the awesome powers of the federal government are illegitimately weaponized against political opponents. Hopefully, the people who have the ear of this administration will have the prudence to counsel: any new power you claim can be used to the opposite effect by your political enemies.