The U.S. Supreme Court is now an enabler of, not a check on, presidential power

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U.S. presidents who want to expand the power of their office don’t often find allies in the Supreme Court, which the country’s founders established as part of a rival branch of government meant to check the impulses and excesses of the other two.

The two modern presidents with the most expansive views of executive power, Franklin Delano Roosevelt, who occupied the White House from 1933 to 1945, and Richard Nixon, who did so from 1969 to 1974, certainly didn’t find succour in the Supreme Court. The high court stymied both presidents’ efforts to broaden their powers and prerogatives, restricting the reach of FDR’s early New Deal programs and prohibiting Mr. Nixon from impounding funds that Congress had appropriated and then ordering him to provide his presidential recordings to a federal court.

But in the early days of this summer, the Supreme Court affirmed several of Donald Trump’s efforts to extend executive power into realms, and with means, that no president dared contemplate before. The result is that, with the assistance of what the drafters of the Constitution intended to be a co-equal branch of the government, the presidency, and thus Mr. Trump himself, is more powerful in more domains than perhaps any previous administration.

These extensions of executive power have thrilled Mr. Trump’s MAGA allies and horrified his opponents, but in the reaction to these recent developments − the ability of a president to remove members of regulatory agencies, new power to shape immigration policy − an important point has been widely overlooked: The powers Mr. Trump possesses now will be available to future presidents, including Democrats.

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There is an analogue that demonstrates how dramatic transformations in political custom have the potential to backfire against those who challenged and overturned those established customs.

In 2013, Senate majority leader Harry Reid, a Nevada Democrat, succeeded in lowering the threshold for the confirmation of federal judges (except for the Supreme Court) to move forward in the chamber with a simple majority rather than the 60 votes required to end a filibuster. Just four years later, Senate majority leader Mitch McConnell, a Kentucky Republican, built on the Reid manoeuvre and engineered a change that also allowed Supreme Court nominees to be confirmed the same way.

The new majority-margin rule was a boomerang that penalized the very architects of the original change, for it allowed the confirmation of Neil Gorsuch, who was nominated by Mr. Trump to fill the vacancy created by the death of Antonin Scalia. But, in yet another potential reversal of fortune, the change the Republicans put in place would also more easily permit the confirmation of Supreme Court nominees selected by a Democratic president.

Mr. Trump greeted the court’s decision to permit him to fire Rebecca Slaughter, a member of the Federal Trade Commission who had been nominated by then-president Joe Biden, with a triumphal statement: “90 years of precedent has been COMPLETELY AND UNEQUIVOCALLY OVERRULED, greatly increasing Presidential Power at a time when it is most needed!”

That decision did more than affirm presidential power over a single agency. It gave an important boost to what is called the “unitary executive theory” of government, which holds that the president, as head of the executive branch, has broad rights to control the membership and thus the decisions of executive departments and agencies.

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This theory has been part of constitutional debate for decades, emerging most visibly during the Nixon administration, which in the face of a hostile Congress controlled in both chambers by Democrats, sought means to advance its policy initiatives. Among the early but at the time not broadly known advocates of this theory were mid-level Nixon administration lawyers John G. Roberts Jr., who is now the chief justice, and Samuel Alito, now an associate justice of the court.

The argument at the heart of unitary executive theory, and now the standard largely affirmed by the Supreme Court in a 6-3 vote, is that independent agencies such as the Federal Trade Commission no longer can be regarded as fully independent bodies, a transformation with implications across the government. A president is now theoretically permitted to remove a commissioner or other agency head on the basis of policy views. Nearly three in four Americans believe Congress, not the president, should set requirements for removing agency appointees, according to a Marquette University Law School poll.

“Agencies are no longer insulated from presidential control, even if Congress intended them to be,” said Daniel Urman, who teaches constitutional law at Northeastern University. “The era of independent agency independence, save for the Federal Reserve, is officially over.” (The court separately ruled that the president does not have the power to remove a member of the central bank.)

The new expansion of presidential power in some ways restores the presidency to the prominence it held during the 20th century, when Theodore Roosevelt, Woodrow Wilson, FDR, Harry Truman, John F. Kennedy, Lyndon Johnson and Mr. Nixon were at the centre of attention in the country’s politics.

That was a period when presidents, through the force of their personalities and then the power of radio and television, monopolized the American conversation. But it created a backlash that took the form, among other ways, in the 1973 book The Imperial Presidency, by Arthur M. Schlesinger Jr., the Harvard historian with strong ties to Mr. Kennedy. The book appeared the same month as congressional approval of the War Powers Act, which restricted presidential latitude in military action.

Today Mr. Trump is at the centre of conversations worldwide and, indisputably, is the nexus of power in the United States. He achieved that through his own muscular style, to be sure. But he also had the assistance of the Supreme Court.