ELECTION
The “Dangerous Supplement” of a Second Trump Administration
How a second Trump term could further consolidate executive power in the administrative state
As Americans cast their votes in the 2024 election, most focused on familiar elements — promises, policies, and personalities. But beneath the narratives lies a more significant issue: the continued weakening of the foundational checks on executive power.
A change in American governance has been persistently developing that fits the mold of the philosopher Jacques Derrida’s idea of a “dangerous supplement” — a replacement to an alternative that, despite its intended optimal effects, ultimately diminishes.
Over the last four decades, executive action has increasingly replaced legislative authority, intended to correct for legislative inaction but threatening democratic balance. With a second Trump administration and a Republican-controlled Congress now almost certain, this trend will likely intensify as Trump leverages “Project 2025” to consolidate power and reshape federal agencies to serve his agenda.
Image representing unilateral executive power as a “dangerous supplement” to Congress. Generated with DALL-E through ChatGPT, 2024
Strong executive action has gained support from those who are fed up with the legislative deadlock. To get around the perceived sluggishness of Congress, many increasingly believe that the president must have decisive power.
In truth, many now wholly attribute our system of governance to whoever occupies the presidency. Many on the right see Trump as a corrective to the concentrated power they perceive centered in relationships between agencies, interest groups, and Congress — their deep-state bogeymen embedded in functions of agencies like the Internal Revenue Service, the Securities and Exchange Commission (SEC), and the Department of Education. Many on the left have complained about the same capture and intransigence in the face of elections or popular public opinion through the policies and agencies they don’t like as well — be it defense, security, or banking and finance regulations.
As a curative, the American public has become so used to presidents using unilateral means to reshape the intent of legislation to that president’s preferences that the use of those tools is now the expectation, not the exception. The dependence we have on any given president to do so weakens the checks and balances that keep concentrated power in check, and this is not a Republican-only phenomenon. Nonetheless, with the ostensible support of Congress and a conservative judiciary, a second Trump term might increase this reliance on one-man rule as a dangerous supplement meant to cure the disease of an imagined rogue administrative state.
To enforce the law, safeguard the public’s health, and maintain economic stability, the U.S. “administrative state” — which includes organizations like the Securities and Exchange Commission (SEC) and the Environmental Protection Agency (EPA) — has been steadily built over the last century and a half. These agencies are intended to function varyingly insulated from temporary political pressure and with many agencies designed by Congress with quasi-independent authority. The administrative state is a product of our separation of powers system. By the very intentions of the three institutional branches of government, it has historically embodied characteristics of each.
The administrative state exists as a direct agent to our separate but equal political branches to help articulate and faithfully execute law that is then to be arbitrated by the courts when their actions fall amiss from constitutional standards.
Congress has delegated policymaking functions to agencies to articulate the intent of legislation with the technical expertise they hold. Presidencies over the decades have sought to centralize these policymaking functions to align operations across agencies and institute executive power. The courts have intervened and demanded agencies incorporate some of their institutional preferences in decision-making, such as adjudication and evidentiary hearings.
The administrative state exists as a direct agent to our separate but equal political branches to help articulate and faithfully execute law that is then to be arbitrated by the courts when their actions fall amiss from constitutional standards. It is comprised of 2.1 million Americans as civilian employees — 85% of whom work across the United States and abroad, far away from Washington, DC — another several hundreds of thousands of military, and countless contractors and grantees from the nonprofit and private sectors who are also expected to work under standards of administrative law to implement policy.
However, during his first administration, Trump reshaped rules to fit his objectives by using orders and appointments to circumvent Congress. He abandoned merit system principles by leaving responsible oversight functions within the executive branch vacant. He required agencies to adopt arbitrary standards, like abolishing two rules for every new one, through executive dictates that undermined public safeguards, promoted indiscriminate deregulation, and ignored agency competence.
His mismanagement and purposeful tactics to dismantle the administrative state led to sweeping departures of some of the most competent employees, and generally reduced support and the perceived integrity of important agencies among segments of the public.
Under a second Trump administration, Project 2025 will likely entrench this executive dominance. The blueprint envisions a federal bureaucracy entirely aligned with the president, deconstructing the nonpartisan, expertise-driven principles that once defined agency leadership. A Congress fully aligned with Trump will likely offer little resistance, further enabling him to consolidate power. Rather than limiting executive overreach, a Republican-led Congress appears set to reinforce it, deepening the unchecked power that many frustrated voters have come to support.
This trend is not exclusive to Republican administrations.
As President Obama once quipped, “We’re not just going to be waiting for legislation. 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.” Biden’s reliance on executive action, including student debt relief, also followed the trend of bypassing Congress. Democrats often support a robust administrative state, but this reliance on executive power invites unchecked authority across party lines.
The Biden administration, while rhetorically railing against unchecked executive power, relied on regulatory changes instead of pushing to codify civil service protections through legislation like the Preventing a Patronage System Act that had a foundation of bipartisan support in 2021. Ironically, these actions can be easily undone by the future Trump administration through the same means — reinforcing the cycle of executive dependency and undermining Congress’s role.
A Republican-controlled Congress appears unlikely to change course. Lawmakers have deferred to the executive branch when aligned with the president, abdicating their role as a check on presidential power. Meanwhile, the conservative Supreme Court has shown little interest in limiting executive authority, as seen in Seila Law LLC v. CFPB (2020), which questioned the independence of the Consumer Financial Protection Bureau. Judicial deference enables executive dominance over regulatory functions, sidelining agencies intended to operate independently.
This alignment among the branches to cede to executive power is fueled by public opinion that has come to accept that power as a norm. Trump, backed by Congress, will face few constraints on expanding executive power. Persistent ambiguities in the Federal Vacancies Reform Act allow presidents to appoint “acting” officials without Senate confirmation, bypassing oversight, and often leaving these acting officials in place well past their statutory limits.
Trump exploited this extensively in his first term, and a second term could see even greater use of this tactic, should potential nominees seem inadequate even to an ideologically favorable Senate majority. As it stands now, legitimate candidates for majority leader in the Senate are openly advocating for abdication of their constitutional role of Advice and Consent to allow Trump to unilaterally appoint people into positions that are typically subject to Senate confirmation.
Instead of being answerable to three distinct but equal trustees of government authority, the administrative state runs the risk of turning into an instrument of the executive without a renewed commitment to competence, independence, and accountability.
Furthermore, there are significant conflict-of-interest issues because federal contractors have been able to contribute to campaigns due to lax enforcement of campaign finance laws. As well, Senate confirmation provides important vetting rules that provide transparency on appointees’ potential conflicts-of-interest. Donors with connections to government contracts could have disproportionate influence on agency decisions due to inadequate enforcement of bans.
This leniency could be advanced by a Republican Congress, which is unlikely to give campaign finance reform priority, giving private interests even more clout. Although there is recent legislation tightening these regulations, the regulations themselves have only recently been issued for proposal by the Federal Acquisition Regulatory Council. Those proposals can easily be revoked by the incoming administration and its appointees to that Council.
A second Trump administration, with support from Congress and the judiciary, would likely entrench executive dominance further, weakening checks and balances. Congress is unlikely to impose limits on acting officials or tighten regulations on campaign contributions by contractors as conflicts of interest.
Instead, it is positioned to enable Trump’s vision of a centralized administrative state. Trump supporters like Elon Musk, who has just been tagged with Vivek Ramaswamy to lead a “Department of Government Efficiency,” could conceivably receive large government contracts and regulatory leniency in exchange for their campaign activities. Though Trump has indicated that Musk and Ramaswamy’s “department” is only in name, and both will serve as advisors. Regardless, many of the people he has named to be nominees, provide very little confidence in the idea that Trump will emphasize expertise over loyalty. Kristi Noem has no established expertise in homeland security, but she will certainly dance to Trump’s preferred tune. Pete Hegseth is raising eyebrows across both parties on whether his Fox & Friends tenure weighed heavier into being Trump’s choice for Defense Secretary than his actual military service (which includes no time at the Pentagon or leading any substantial organization).
Expertise must take precedence over loyalty to maintain public trust in these institutions. Ironically, the agencies that comprise the administrative state poll much more favorably than any one of the three political branches. Nonetheless, loyalists were appointed instead of more qualified executives throughout Trump’s first term, which damaged public trust and agency morale. This trend will only be accelerated by Project 2025’s emphasis on loyalty, which will cement agency leadership chosen more for ideological affinity than for expertise. Under these circumstances, agencies run the risk of losing their historical function as independent regulators and becoming into extensions of the executive.
The “dangerous supplement” reveals a flaw in our democratic institutions, endangering our democracy more than any one president could. Instead of being answerable to three distinct but equal trustees of government authority, the administrative state runs the risk of turning into an instrument of the executive without a renewed commitment to competence, independence, and accountability. This harmful additive will not only continue but even intensify under a second Trump administration with a supporting Congress and courts.
Maintaining a balanced system and avoiding executive overreach are critical to the future of American governance. However, given that the majorities in the judiciary and the next Congress will ostensibly support Trump, this opposition might be more symbolic than real. Instead of being a political instrument, the administrative state was created to serve the people. And it tends to do it more effectively when insulated from short-term political interests. To maintain it as a defender of representative democratic integrity, it must be protected from the perilous addition of unbridled executive power. Striking this balance might be more difficult than ever during a second Trump administration.
William Resh holds the C. C. Crawford Professorship in Management and Performance as an Associate Professor of Public Policy and Management at the University of Southern California’s Sol Price School of Public Policy. He is the Director of USC’s Civic Leadership Education and Research (CLEAR) Initiative and the author of Rethinking the Administrative Presidency (Johns Hopkins University Press). He is currently working on another book entitled The Parallel State: How Privatization and Political Favoritism Erode American Democracy.
