No Kings?  Well … Not Your King! | The American Spectator

I shamefully confess I watched the “No King” protests with a gleeful and almost-prurient mix of satisfaction and almost-arrogant disdain. It’s always good to see “We the People” expressing discontent against big government and executive overreach. On the other hand, I couldn’t help but think that most Americans really do want a king — but a king of their choosing. The “No King” protests might better have been dubbed the “Not Your King” protests.

Lest I come across as supporting one particular wing of the Republicrat party, I should start by pointing out that I’m rather cross that the desire for a king runs across both of the party’s wings. There is scant difference, indeed, between the constitutional attitude of a President Trump and President Obama. Mr. Trump recently opined that Article II of the U.S. Constitution gives him the power to “do whatever I want as president.”

Alas, he doesn’t differ much from Mr. Obama’s candid explanation ten years ago: “We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.”

The question is indeed constitutional. While we may disagree (or, perhaps, agree) with the substance of Mr. Trump’s actions, the question here comes down to the power of the executive – and, more broadly, that of the U.S. government.

Let’s step back for a moment. Democracy has become the political god of the 20th century. But the constitutional foundations are usually neglected. Why a constitution? Imagine for a moment we are in a pre-constitutional stage. We eke out a living, in constant fear of each other. We’ve all read our Adam Smith, and we lament the inability to focus on capital accumulation, specialization according to comparative advantage, and trade. So we decide to enter into a constitutional agreement. Peace and growth ensue. But we all know that plunder is just one cost-benefit analysis away, and that all parties will unilaterally cheat if they think it’s in their benefit. So we establish a government, as an enforcement mechanism. So far, so good.

But who will run the government? And how can I trust others, once in power, to use the government for enforcement, rather than self-enrichment? Before we surrender to the government’s authority, we will all want assurances. In the words of the Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

In simple terms, I won’t accept the constitutional bargain if there are no constraints to what you might do if you’re in power. And neither will you, should I gain power.

The Founding Fathers, in their wisdom, were aware of this problem. So they set out to limit the powers of the new national government. Again, in the words of Federalist 51, they established “ambition to check ambition”: the states versus the federal government, and separation of powers within the federal government. The powers of each branch were clearly defined. Start with Article 1, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States” — not some. All (my emphasis). Article 1, Section 7 reminds us that “All Bills for raising Revenue shall originate in the House of Representatives.” Article 2, sections 2 and 3 clearly define the role of the President. And the list goes on.

Beyond separation of powers, the federal government — oh dear, need I really repeat this? — is one of limited and enumerated powers. Article 1, Section 8 lists the powers — only about 20 — of the new federal government created by the constitution of 1787. And, in case there was any doubt, the 10th amendment (1789) reminds us of this constraint. As originally drafted, I think it may have read as follows: “And we mean it!” But it was felicitously transformed into clear language, lest future generations decide to start inventing federal powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So, what happened between 1789 and 2025?

Very quickly, those in power found that constitutional constraints were pesky inconveniences. The Alien and Sedition Acts of 1798 clashed with the letter and spirit of the First Amendment. Thomas Jefferson’s Louisiana Purchase and Henry Clay’s American system were perhaps not entirely unconstitutional – but they were certainly not explicitly constitutionally authorized.

Lincoln, among many other constitutionally dodgy actions, suspended habeas corpus during the Civil War; the Courts struck him down several times, because habeas corpus is explicitly a congressional prerogative, under Article 1, Section 9 — but Lincoln wasn’t much interested in the Courts, and kept arrest warrants for pesky judges in his desk drawer, lest the Constitution interfere with his prosecution of the war against the Confederacy.

In the end, Congress delegated its powers to the president, through the Habeas Corpus Suspension Act of 1863. By executive order, FDR confiscated privately-held gold (1933) and established the largest jobs program in U.S. history (1935) — then ordered the internment of more than 120,000 American citizens of Japanese descent (1942). Harry Truman tried to nationalize the steel mills, until the Court said no. One would be hard-pressed to find constitutional authority for any of those actions. Nixon suspended the gold standard (clearly not a presidential prerogative, and arguably a violation of Article 1, Section 8, clause 5, and the congressional responsibility to ” to coin Money [and] regulate the Value thereof”).

I suspect that some readers of these pages might applaud some of the actions in the last paragraph, while groaning at others. Certainly, a broader, mixed sample of Democrats and Republicans would approve of some and reject others – if anything, both the history and modern interpretation show a bipartisan consensus on expediency over principle, when the expediency is convenient. We all want a king!

Well, our king. Not theirs.

I remember talking to left-wing friends a few days before Trump’s first inauguration in 2017. I tried to be generous, rather than dismissive, as I welcomed my Democrat big-government friends into the world of those of us who have long been worried about overreach. But I was naïve. There was no call for constitutional prudence. As one friend put it, “We’re not like you libertarians. We want big government. We just want the right people in power, so they can do the right things.” And there’s the rub.

Too many Americans have applauded when their king has ignored the constitution – thereby setting the precedent for constitutional violations… and a precedent for the next president who wants to play king. The examples are too many to list here. But we can name a few.

Trumponomics looks a lot like Bidenomics 2.0; the details are different, but the thinly veiled central planning of the economy is the same.

Trump enjoys ruling by executive order to bypass Congress, and his MAGA supporters love it. He signed 220 in his first term and 163 so far in his second term. But that’s not entirely inconsistent: Biden signed 162, Obama 276, and George W. Bush 291. FDR signed a whopping 3,721 (and we’re all supposed to like him, right? After all, he’s #3, after Lincoln and Washington in the survey of great American presidents).

The Supreme Court has been complicit in its deference to the political branches. Over the past 75 years, the Court has struck down a mere 0.67 percent of federal laws, 0.5 percent of federal administrative regulations, and 0.05 percent of state laws — and that’s just within the 5 percent of cases for which the Court grants cert. Meanwhile, the federal government now controls about 25 percent of the economy, to which we can add 10 percent per year for compliance with federal regulations.

We need only look at the Dirty Dozen cases where the Court ignored or rewrote the Constitution. In one particularly egregious example, Helvering v. Davis (301 U.S. 619, 1937), the Court ruled that Congress may define its own limits under the general welfare clause —Article 1, Section 8 and the 10th amendment be damned … full speed ahead! It is small wonder that about 75 percent of federal expenditures are not authorized by the constitution. So much for judicial review.

Congress started aggressive delegation of its legislative authority to the executive in 1887, with the creation of the Interstate Commerce Commission. A quick constitutional reminder: Article 1, Section 1 reminds us that ” All legislative Powers herein granted shall be vested in a Congress of the United States” (my emphasis). Since then, it has continued, creating 58 independent agencies with de facto legislative power (within a total of about 440 federal agencies).

As my friend, former student (yep, I’m proud!), and colleague Dave Hebert recently wrote, “the Supreme Court has ruled time and again that Congress has the authority to delegate its powers to the president in certain situations. This means that the claim by some that “Article 1, Section 8 of the Constitution says this is the realm of Congress, therefore if the president enacts tariffs, it is by definition unconstitutional,” is an argument that the Supreme Court has already explicitly rejected. And that’s just one example. So much for enumerated powers and the non-delegation doctrine.

Beyond politics, there’s plenty of blame to go around. We can start with failed K-12 schools that push collectivist political agendas instead of teaching fundamentals. We can start with the neo-Marxist, postmodern, DEI, identity politics barbarians who have turned their back on the best of the Enlightenment, instead of working to continue its work of liberation.

But we can also look to ourselves. The next time you’re thinking it would nice if the president would just bypass Congress to get things done, think twice. And you can remind those around you that constitutional limitations apply just as much to Medicare for all as they do to deportations of illegal aliens without due process of law.

Mr. Trump’s disdain for the Constitution is indeed worrisome. But, lest everything we hold dear perish, we should focus on the deeper cause rather than the scary rotten abscess that is finally exploding, after decades of constitutional neglect, on the face American society.

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Nikolai G. Wenzel is Professor of Economics at Universidad de las Hespérides, a startup, online, classical liberal university, where he directs the MA in Economics. He is also an Affiliated Research Fellow of the American Institute for Economic Research, and a member of the Mont Pelerin Society.