The Executive Branch
- Mar 15
- 5 min read
"Article II Without Guardrails"
How the presumption of executive regularity was built, broken, and never repaired.
This is the third installment in a series on structural failures in American governance. Previous editions examined the legislative branch and the judiciary. The argument here, as in those editions, is not partisan, it is architectural. When the structure of executive power drifts beyond its design, instability eventually follows regardless of who holds office.
In administrative, constitutional, and evidentiary law, the presumption of regularity is a foundational doctrine: courts presume that government officials have properly discharged their duties, acted within the law, and exercised authority in good faith. Its Latin formulation "omnia praesumuntur rite esse acta", everything is presumed to have been done rightly traces to English common law and has been recognized in American administrative law since at least 1926. Yet for all its longevity, legal scholars Aram Gavoor and Steven Platt demonstrated in 2022 that federal courts apply the presumption in at least fourteen distinct ways, each with its own definition, and that the Supreme Court has never articulated a single comprehensive framework defining its scope.¹
That indeterminacy is a distinct difficulty as a principle of this foundational underlying judicial deference to the executive, prosecutorial discretion, and administrative agency action whose coherence depends not on enforceable doctrine but on the institutional culture of those exercising power. It is a principle that will hold only as long as a culture of prudence exists, when this erodes, there is no doctrinal floor beneath it.
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The culture has eroded. Arthur Schlesinger Jr. argued in his 1973 study "The Imperial Presidency" that presidential power expanded not primarily through dramatic usurpation, but through incremental accumulation, authority added during each national crisis, normalized by the successor who inherited it, and never fully reconciled with the constitutional grant from which it departed.²
The disease predates the diagnosis. Three developments, each bipartisan in origin, established the structural conditions for today's instability.
First, the administrative state. The New Deal's expansion of executive regulatory authority ran into immediate constitutional resistance. The Supreme Court's unanimous 1935 decisions in "A.L.A. Schechter Poultry Corp. v. United States" and "Panama Refining Co. v. Ryan" held that Congress cannot transfer its core legislative function to executive agencies without meaningful guiding standards.³ Those decisions were never overruled. After the constitutional crisis surrounding President Franklin Roosevelt’s 1937 court-reorganization proposal, however, the Court shifted toward greater acceptance of congressional delegation. The constitutional question whether broad delegation of lawmaking authority to executive agencies is permissible was deferred rather than resolved. Nine decades of institutional accumulation followed. The Supreme Court’s 2024 decision in "Loper Bright Enterprises v. Raimondo", which overruled the Chevron deference doctrine, signals renewed judicial willingness to revisit that question but does not undo the administrative structure built in the intervening years.⁴
Second, the war power. James Madison warned that the executive is the branch most interested in war, and most prone to it, the explicit constitutional rationale for vesting the declaration power in Congress.⁵ President Harry Truman’s 1950 commitment of forces to Korea without a formal declaration established the decisive precedent. More than 36,000 Americans died in what the administration described as a “police action.” No subsequent president has sought a formal declaration of war. The War Powers Resolution of 1973 attempted to restore congressional authority, but every administration since has questioned its constitutionality and avoided formally conceding that it binds the president.⁶
Third, the classified state. The National Security Act of 1947 embedded in permanent statute a set of executive institutions whose operations would frequently be concealed from the public and often only partially visible to Congress. The Senate’s Church Committee investigation in 1976 found that resulting abuses including the domestic intelligence program known as COINTELPRO, mass surveillance, and inappropriate covert foreign operations were institutional practices across multiple administrations, not merely individual misconduct.⁷
The Iran-Contra affair of the 1980s revealed that senior officials in the Reagan administration violated a statutory prohibition by routing funds through channels designed to evade congressional oversight. After the attacks of September 11, 2001, internal legal memoranda articulated one of the broadest formal theories of executive authority in American history. In each case, tools constructed by one administration were retained and extended by the next.⁸
Watergate was not the origin. Nixon’s folly was the diagnostic moment, the point at which machinery built up across decades was operated, visibly and without significant restraint, against the institutions designed to check it. The diagnosis should have been followed by structural repair. The War Powers Resolution, the Foreign Intelligence Surveillance Act, and the Inspector General Act addressed specific mechanisms of abuse. They did not rebuild the underlying norms. Formal rules that powerful actors treat as suggestions, and that carry no effective enforcement, are not constraints. They are the appearance of constraints.
The argument here is deliberately nonpartisan because the evidence is deliberately cross-partisan. The administrative state was built under Franklin Roosevelt, expanded under Lyndon Johnson and Richard Nixon, and its constitutional foundations remain contested today by conservatives and libertarians who argue with textual support that the delegation of legislative power to executive agencies was never constitutionally authorized. That is a structurally serious critique. So is the progressive and civil libertarian observation that unchecked executive power has historically fallen hardest on those least able to resist it: the wartime internment of Japanese Americans ordered by executive authority during World War II, civil rights organizations surveilled and disrupted under COINTELPRO, and citizens subjected to warrantless surveillance authorized by secret legal interpretation. Both critiques describe the same structural failure from different angles.
The previous editions in this series documented how Congress has increasingly struggled to function as a deliberative governing institution, and how the judiciary’s authority ultimately depends on public confidence that polarized confirmation battles have strained. The executive branch analysis arrives at the same conclusion: an office that has accumulated authority beyond its original constitutional grant, operating in an environment of systematically diminished public trust, is not a stable configuration. It is, as the historical record consistently shows, a combustible one.
A government of the people, by the people, and for the people requires that the rules governing executive authority are rules rather than suggestions and that the institutions charged with enforcing those rules retain the independence and credibility to do so. The post-Watergate generation attempted that repair and did not complete it. That work remains before us.
References:
Aram A. Gavoor & Steven A. Platt, *In Search of the Presumption of Regularity*, 74 Fla. L. Rev. 729 (2022).
Arthur M. Schlesinger Jr., *The Imperial Presidency* (1973).
*A.L.A. Schechter Poultry Corp. v. United States*, 295 U.S. 495 (1935); *Panama Refining Co. v. Ryan*, 293 U.S. 388 (1935).
*Loper Bright Enters. v. Raimondo*, 144 S. Ct. 2244 (2024).
James Madison, *Helvidius No. 4* (1793).
War Powers Resolution, 50 U.S.C. §§ 1541–1548 (1973).
S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, *Final Report* (1976).
H.R. Rep. No. 100-433 (1987); Harold H. Bruff, *Bad Advice: Bush's Lawyers in the War on Terror* (2009).
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