The rule of law is at a ‘breaking point.’ Will future presidents have free rein?
As the United States marks its 250th birthday, Straight Arrow is taking a fresh look at the institutions, systems and social contracts that shaped modern America — and the pressures now testing them.
Families gathered at prison gates across America the day of Donald Trump’s second inauguration. The new president had promised to pardon supporters who were convicted in the Jan. 6, 2021, assault on the U.S. Capitol, and he quickly delivered. That night, 400 prisoners walked free; in all, about 1,500 people received pardons through one of Trump’s first executive orders of his second term.
Presidential pardons normally are awarded through a deliberative process that takes months or years. This was not normal. Never before had a U.S. president freed so many prisoners in a single day.
Trump’s mass pardons on Jan. 20, 2025, set a tone for his second term, during which he has repeatedly disregarded legal norms followed by previous presidents and tested the limits of executive power. He has fired federal officials from independent agencies, redirected congressional appropriations, imposed tariffs and directed the Justice Department to bring criminal charges against his enemies. He insists that he — and he alone — can set limits on his authority.
For most of America’s 250 years, a core principle held that no one — not even the president — was above the law. But in recent decades, presidents from both political parties have asserted more and more power. George W. Bush built a surveillance state after the terror attacks of Sept. 11, 2001. Barack Obama used an executive order to mandate new immigration policies when Congress failed to act and authorized military actions without congressional approval. Joe Biden imposed sweeping vaccination requirements and tried to shut down misinformation during the COVID-19 pandemic.
Now, approaching the midpoint of Trump’s second and final term, legal experts, scholars and historians are pondering how his wielding of power will influence the future of the presidency — and of American democracy.
“This is the unitary executive theory on steroids,” John Jones III, a former federal judge appointed by Bush, said of Trump’s presidency. Jones was one of 35 retired federal judges who recently intervened in a lawsuit over Trump’s $1.8 billion “anti-weaponization fund” for reimbursing people who claim they were persecuted under previous administrations.
“This is a president running roughshod over the Article I branch, which is the Congress, and trying — not yet successfully — to run over Article III, which is the courts,” Jones told Straight Arrow.
Trump’s actions, he said, “have stretched the rule of law nearly to the breaking point.”
The Constitution’s framers anticipated that presidents and officials from other branches of the government would be “motivated to aggrandize their own power and intrude on the powers of the other branches,” said Molly Nixon, who studies the scope, use and history of executive power as a senior fellow at the Cato Institute, a libertarian think tank.
“Trump is operating at the aggressive end of a long continuum of presidents who have asserted broad executive power, but many of his actions can be traced to prior precedents,” Nixon told Straight Arrow. “Trump is building aggressively on a long line of broken norms by past presidents.”
While some see Trump’s behavior as reckless and destructive, a challenge to democratic principles, others see it as a long-needed reckoning. They welcome his moves to concentrate power in the Oval Office.
“For too long, Congress and the courts have encroached on presidents’ abilities to hire and fire whom they please and to make decisions squarely within presidents’ authority,” said Zack Smith, a senior legal fellow at the Heritage Foundation, the conservative think tank that created Project 2025, a blueprint Trump has followed to reshape federal government.
“President Trump has taken steps in many instances to re-assert his authority under Article II of the Constitution,” Smith told Straight Arrow. “President Trump has correctly pushed back against many of those restrictions. This will benefit all future presidents, regardless of political party.”
‘Weaponization’
In January, a year after returning to office, Trump filed an unprecedented lawsuit.
He sought $10 billion in damages from his own government — specifically from the Treasury Department and the Internal Revenue Service, both of which he oversees. He claimed he had been harmed by the leak of tax documents by an IRS contract worker.
The agencies would be defended by the Justice Department, also under Trump’s control.
But the Justice Department never filed a formal response to the lawsuit. Instead, in May, acting Attorney General Todd Blanche announced a settlement that would free Trump, his family and his businesses from potential fines and penalties from long-running IRS audits — an action worth as much as $100 million. And the Justice Department would set up the “anti-weaponization fund” to compensate victims of what Blanche called “lawfare and weaponization” of the justice system.
“They are not operating as according to what used to be the norms,” said Jones, the former federal judge. “The Department of Justice obviously now has become seamless with the president and he’s been using it as kind of a cudgel to prosecute his enemies.”
At no time since the Watergate era, legal scholars say, has a president so treated the attorney general as his personal lawyer and the FBI as his own police force.
While Trump’s supporters say Democratic administrations unfairly targeted conservatives, critics say it is Trump who has weaponized the Justice Department, publicly instructing officials to pursue criminal cases against his perceived enemies, such as Obama, Biden, former FBI director James Comey and New York Attorney General Letitia James.
The Justice Department has twice persuaded grand juries to indict Comey, whom Trump fired as FBI director during his first term, reportedly after questioning his personal loyalty. A judge dismissed the first case, which claimed Comey lied to Congress. The second indictment claimed Comey threatened Trump’s life when he posted a picture on social media that showed seashells arranged in the shape of the numbers “86” and “47.” Prosecutors interpreted the numbers as a call to “get rid of” the 47th president: Trump.
Comey “probably ought to lose his cellphone camera,” Jones said. But “photographing seashells on a beach should not have bought him a federal indictment, and I doubt that will even get to a jury. But that’s the bizarre world that we’re in.”
The Cato Institute’s Nixon said that a president using government power to achieve goals is nothing new.
“President Richard Nixon’s White House infamously maintained an enemies list that included political opponents, journalists and actors,” Nixon told Straight Arrow. “White House Counsel John Dean was explicit that the goal was to ‘use the available federal machinery to screw our political enemies.’ …The desire to use government power against perceived enemies is definitely not new. And the presidency probably wields more power now than at any other time in our history.”
Accountability
Between his first and second terms, Trump was charged with 88 criminal offenses across four cases. While three of those cases — involving the 2020 election and the alleged mishandling of classified material — were dismissed, he returned to office as the only U.S. president ever convicted of a felony.
In his second term, Trump and his administration have been sued more than 750 times, as states’ attorneys general, advocacy groups, civil rights organizations and private citizens try to block his agenda. Trump has won just seven of those cases, but a series of Supreme Court decisions allowed his administration to continue many of the contested policies while underlying lawsuits play out.
“In general, we’ve seen President Trump face many novel legal situations forcing courts to decide previously unaddressed legal issues,” said Smith, of the Heritage Foundation. “In part, the deluge of litigation against the Trump Administration has been prompted by pushback to his efforts to reassert the president’s core Article II authority over the executive branch of government.”
The Cato Institute’s Nixon said it’s not surprising that much of the litigation has yet to be decided.
“The judiciary has several institutional competencies, but speed is not one of them,” she said. “Still, courts have to decide the cases that come before them while, by contrast, there are no real forcing mechanisms that apply to Congress if it simply doesn’t want to act.”
”The judiciary has actually performed very well as an institution, so I’m not sure that a recovery will be needed,” Nixon said. “The judicial process can take time, and reasonable people can disagree about decisions in specific cases, but courts, on the whole, have taken each case as it comes before them and worked to resolve those cases under the Constitution, laws and precedent.”
With the courts moving slowly, “the administration really, in my mind, has established a pattern where the law is what they say it is,” said Jones, the former federal judge. “The third branch, my old branch, I think has been steady and for the most part has stepped up to the great distress and chagrin of the president and his administration. But they’ve called a hold to a lot of this stuff, and that’s exactly what the third branch is designed to do.”
But if Trump — or any president — ignores court rulings they don’t like, what happens? And once Trump has broken so many precedents, what’s to stop his successors from further stretching the law to achieve their aims?
After Trump
”What I’m most curious about is whether this sort of lurid corruption creates a countermovement that successfully returns government to rule of law or whether it’s establishing a norm of executive imperialism that every future administration will use to achieve its ends, which can always be justified by the moral blank check of ’the other side is worse, so let us do whatever we want,’” The Atlantic’s Derek Thompson recently wrote on X.
Some scholars think the American system is resilient and can heal the wounds any president may inflict. The country survived Watergate, Iran-Contra and more. Perhaps, they say, today’s challenges will also be met, eventually.
“History shows that broken norms rarely repair themselves, but it also shows that determined Congresses and engaged voters can forge new ones,” Nixon said.
She added: ”There’s no fundamental reason Congress couldn’t reclaim its power if members — and American voters — want to restore the separation of powers required by our governing framework.”
Jones thinks it may be a longer, more uphill battle.
“I think it’s going to take years for what this president has done that is injurious to democracy to abate,” he said.
He pointed to the Justice Department, where thousands of lawyers have been fired for their alleged disloyalty or have resigned in protest.
“How to rebuild that?” he asked. “That could take a generation. It isn’t just a question of whether a president comes into office and has noble intent. … It’s about how long it will take to undo the damage that has astonishingly been happening over a year and a half. And I think that’s a greater question.”
Round out your reading
- America at 250: Straight Arrow’s week-long look at the pressures testing modern America.
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Ella Rae Greene, Editor In Chief
