Constitutional Crisis: Who's In Charge of the Rule of Law?

Insights from my interview with Professor Bruce Ackerman of Yale Law School

This essay accompanies our latest podcast episode of Exploring Prosperity featuring Bruce Ackerman, Sterling Professor of Law and Political Science at Yale University, author of 19 books, and one of the most influential constitutional scholars of our time.

Our conversation centered on themes from his prescient 2010 book, The Decline and Fall of the American Republic, (highly recommend!) which warned of a dangerous drift toward unchecked executive power. Fifteen years later, his analysis feels more relevant than ever, as political instability, institutional erosion, and constitutional ambiguity raise serious questions about the long-term prospects of American democracy—and by extension, future prosperity.

Why This Conversation Matters

The mission of Exploring Prosperity is to challenge the record-high pessimism gripping Americans about the prospects for the next generation. For 250 years, each generation has been more prosperous than the last—will we be able to keep that streak alive? Probably! But behind this optimism lies a disturbing threat: the expansion of executive power has created a self-reinforcing cycle that both weakens our constitutional system and fuels political division. While most survey-based discussions focus on economic challenges, social concerns (like healthcare and education), environmental threats, or political polarization, they often overlook this fundamental issue: institutional decay at the constitutional level may represent the most significant—yet least discussed—long-term risk to our system of government, and by extension, to generational prosperity.

Dan Carlin, host of the popular podcast "Common Sense," highlighted in his latest podcast entitled “What’s Good for the Goose” (highly recommend!) Ackerman's book as having forecasted with eerie accuracy the problems we now face with the expanded power of the presidency through seven predictions that have all come true. (See Appendix below.)

I share Carlin's assessment: Ackerman diagnosed a deep structural problem that remains unresolved and has only intensified. This conversation is not about any single administration, but about a decades-long bipartisan drift that threatens the constitutional balance our system depends upon.

Ackerman's Core Argument

The central thesis of The Decline and Fall of the American Republic is that the presidency has evolved into a power center that routinely bypasses Congress, the courts, and traditional checks and balances. This transformation represents a profound departure from the Founders' vision.

As Ackerman explained in our conversation, this shift can be traced through stark numbers: When Thomas Jefferson was president, his staff consisted of just two people. Seventy years later, President Ulysses S. Grant had a staff of three. By Theodore Roosevelt's time in 1901, the number had grown to six. Today? The Executive Office of the President employs approximately 2,500 staffers, with hundreds more in related offices like the Office of Management and Budget.

This exponential growth reflects a fundamental reimagining of the presidency. The Founders envisioned a system where, outside of wartime, real power would rest with the Speaker of the House—the only official directly representing population-based districts. The Senate was a check of states, and the President was a check against both houses of Congress, not the center of governmental authority.

What changed? Several factors converged:

1) wartime expansions of power that never fully receded;

2) technology creating a direct connection between presidents and the public (from FDR's fireside chats to today's social media); and

3) congressional abdication of key responsibilities.

Perhaps most importantly, presidential primaries replaced party selection, creating what Ackerman calls "the plebiscitary presidency"—a figure who claims to embody the popular will, often against other institutions.

This transformation has created a troubling dynamic: each administration now wields expanded powers to implement increasingly dramatic policy shifts. The whiplash from Trump to Biden and back to Trump demonstrates how unchecked executive authority enables each presidency to push further in reaction to its predecessor. This pendulum doesn't just create uncertainty; it erodes legitimacy as each side feels justified in further expanding presidential power to "correct" the perceived overreach of their opponents—a self-reinforcing cycle of institutional erosion.

Crucially, Ackerman emphasizes that this transformation is bipartisan and cumulative—each administration builds on the expanded powers claimed by its predecessors. This isn't about any one president, but about structural drift that threatens the constitutional balance.

The Real-World Implications

The concerns Ackerman raised in his book have manifested in numerous ways across recent administrations. Consider several developments that exemplify these structural problems:

· First, the unilateral use of tariffs. While debates continue about the economic wisdom of tariffs, the more fundamental question involves who has authority to set them. As Ackerman notes, Congress has gradually ceded substantial authority to the executive branch in this area.

· Second, challenges to independent agencies. The current administration's efforts to assert control over institutions like USAID and influence the Federal Reserve Board challenge the 150-year tradition of independent agencies that Ackerman carefully traced in our conversation. Agencies like the Fed were created by Congress precisely to ensure that technical expertise and long-term stability would be insulated from short-term political pressures.

· Third, selective enforcement of laws. Recent administrations have increasingly used executive discretion to effectively rewrite laws without congressional action. The Biden administration's attempts to forgive student loan debt through executive action (despite Supreme Court rejection), Obama's DACA program deferring deportation for certain immigrants, and the Bush administration's decision not to fully enforce certain environmental regulations all demonstrate how presidents across parties use selective enforcement to implement policies Congress hasn't approved.

· Fourth, control over appropriations. When Congress explicitly appropriates money for specific purposes but a president refuses to spend it, we face a constitutional crisis that tests the very foundation of separated powers. This practice, known historically as "impoundment," was attempted by presidents from Nixon to Clinton and continues today.

The judiciary now faces historic tests with upcoming rulings on the limits of executive authority—particularly regarding the independence of agencies. Meanwhile, Congress has consistently failed to reclaim its authority in crucial matters of war and spending, creating dangerous precedents that cross party lines.

This matters profoundly for prosperity. Stable, legitimate governance provides the foundation for economic progress, national unity, and opportunity. When institutions lose their legitimacy—when the rules become too fluid and power too concentrated—both democracy and prosperity become vulnerable.

Highlights from the Interview

Professor Ackerman provided insights that help us understand how we arrived at this critical juncture.

His explanation of the historical development of independent agencies revealed how these institutions evolved as thoughtful responses to the challenges of a changing industrial society. From the Interstate Commerce Commission in 1887 to the Federal Reserve under Woodrow Wilson, these agencies represented a careful adaptation to the need for technical expertise while preserving democratic accountability.

Ackerman particularly emphasized the critical role that education plays in our democracy. Today's American electorate is the most educated in our history, with approximately 50% of whites and 38% of blacks holding college degrees, up from 8% whites and 4% blacks in 1960. Yet this educational achievement exists alongside our modern information environment that gives every voice a megaphone that Ackerman feels often undermines rather than enhances deliberation—a tension he explores with scholarly care but civic urgency.

His reflections on the post-Berlin Wall and post-9/11 expansions of presidential power in foreign affairs were especially illuminating. The bipartisan tendency to bypass the War Powers Act—from Clinton's intervention in Sarajevo to Obama and Trump's actions in the Middle East—demonstrates how deeply entrenched these patterns have become.

Ackerman offered concrete remedies that could help rebalance our system. His suggestion that Senate confirmation be required for leaders of the Executive Office of the President would introduce incremental accountability. His proposal for a national "Deliberation Day" before elections would leverage our educated populace for more thoughtful democratic engagement.

Throughout our conversation, Ackerman's commentary contextualized today's dilemmas with historical clarity and constitutional wisdom. While his analysis is sobering, his ultimate message is one of cautious hope: with renewed civic commitment and certain reforms we can still find a better path forward.

A Constitutional Crisis That Demands Attention

The health of our constitutional system isn't an abstract concern—it's the foundation upon which all other aspects of American prosperity depend. Bruce Ackerman's warnings deserve our serious attention, not as partisan critique but as thoughtful constitutional analysis.

What makes this threat particularly insidious is its self-reinforcing nature. Each administration uses expanded executive powers to reverse its predecessor's actions, then extends those powers further. This pattern both weakens institutions and fuels polarization—when policy can change by executive fiat rather than legislation, the incentive for compromise vanishes, creating a vicious cycle where polarization and executive overreach reinforce each other.

While most discussions of generational pessimism focus on more visible challenges, this constitutional erosion may ultimately prove more consequential. It represents one of the most serious—yet least discussed—threats to the prospects of future generations. The declining legitimacy of our governing institutions undermines our capacity to address any other challenge we might face.

The remedies Ackerman outlines offer potential starting points for addressing these deep structural problems. But the first step is recognizing the gravity of the situation. Our conversation with Professor Ackerman underscores a sobering reality: without meaningful reform to contain executive power and restore constitutional balance, this cycle of institutional decay threatens not just our democracy but the prosperity of generations to come. In a future essay, I'll explore concrete solutions to this constitutional crisis—from legislative reforms and judicial checks to civic engagement strategies that could help reverse this troubling trajectory. It's not enough to diagnose the problem; we must also chart a path forward.

Appendix: The Seven Predictions from Bruce Ackerman’s The Decline and Fall of the American Republic

1. The Rise of a “Civilianized” Military Establishment

   • Ackerman warns of a growing class of military professionals embedded in the civilian leadership of the executive branch. This tight integration blurs the line between civilian and military authority, raising concerns about democratic accountability.

2. The Emergence of a Presidential “Supremacy” Doctrine

   • The presidency increasingly claims powers that override other branches—particularly through the assertion of national security needs and emergency powers—with courts and Congress largely deferring.

3. The Collapse of the Party Nomination System

   • The shift from party-led nominations to the primary system allows charismatic or extreme candidates to bypass institutional checks, weakening vetting and party responsibility.

4. Manipulation of Media and the “Spectacle Presidency”

   • Modern presidents use media to perform and posture rather than govern transparently, shaping public perception while avoiding real deliberation or oversight.

5. Breakdown of Congressional Oversight

   • Congress has abdicated its responsibility to check the executive, particularly in matters of war powers, budget control, and agency independence, allowing the president to act with minimal resistance.

6. The Politicization of the Department of Justice

   • The DOJ and other investigative arms of government risk becoming tools of partisan enforcement when presidents treat them as personal instruments rather than impartial institutions.

7. Decline of the Rule of Law and Judicial Independence

   • The courts, especially the Supreme Court, may increasingly favor executive authority in the name of pragmatism or ideology, eroding constitutional limits.

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