Trump’s ‘bald power grab’ could set US on path to dictatorship, critics fear

Unusually for him, Donald Trump made no great fuss as he signed one drily worded executive order last Tuesday.

Public attention was distracted that day – by the headline-grabbing drama of Elon Musk bludgeoning his way through the federal bureaucracy, by immigrants deported to Guantánamo Bay, and by the torrent of other directives Trump has issued since his inauguration last month.

But Trump’s 69th executive order of his second presidency, under the deceptive title of “Ensuring accountability for all agencies”, has been denounced as a “bald power grab” that advances a political doctrine intended to make a dictator of the president.

The order, wedged between the signing of a directive to end Covid vaccine mandates in schools and another expanding access to in vitro fertilisation, also contains a single paragraph that permits the president to decide the law and who should obey it.

The paragraph has alarmed even some constitutional conservatives who otherwise agree with many of Trump’s actions. Other critics characterise it as another step toward an American brand of despotism.

Frank Bowman, a law professor and former federal prosecutor who authored High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump, described the executive order as “breathtaking”.

“The essence of it is that Donald Trump is trying, quite consciously, to make himself an elected dictator,” he said.

“It has big implications. The order basically says, ‘The law is determined by my will, period, and anyone who disagrees either has to fall in line or, by implication, we can fire you because you’re not permitted to express opinions about the law contrary to mine.’ So welcome to either monarchy or dictatorship.”

The order ostensibly seeks to enhance transparency and accountability within those federal agencies that act with a degree of independence, such as the Securities and Exchange Commission and the Federal Trade Commission, by bringing them under more direct oversight by the White House.

“Previous administrations have allowed so-called ‘independent regulatory agencies’ to operate with minimal presidential supervision. These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the president, and through him, to the American people. Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the president,” the order said.

But the detail of the order gives the president powers far beyond mere oversight.

Joe Morelle, the top congressional Democrat on the committee on house administration, wrote to Trump on Wednesday denouncing the order as “an unprecedented violation of American rule of law” that “opens the floodgates to political corruption and immeasurable money in politics”.

Trump in the White House in January. Photograph: Kevin Lamarque/Reuters

If the order stands, it potentially opens the way for Trump to serve his political and business interests by favouring funders and allies, such as Musk – for example, by ruling that they are not bound by financial regulations, or that immigration judge rulings are invalid.

But critics have further warned that, taken with other measures, the directive poses a more fundamental threat to democracy as it advances the Republican right’s “unitary executive theory”, which casts aside the constitution’s checks and balances in favour of a claim that the president’s authority is paramount.

The executive order seeks to exploit the complexities of modern government. In the 1930s, Congress delegated the setting of detailed regulations for agencies that require particular expertise – such as finance and technology – to officials with specialist knowledge. The legislature still set broad parameters, but officials were charged with deciding the detail of administrative law.

Congress made these regulatory agencies a step removed from the presidency to protect their independence. It only permitted the president to dismiss those leading the agencies under specified circumstances.

Although most modern governments have similar systems, Trump has characterised the process as a usurpation of presidential powers and therefore unconstitutional.

Trump’s executive order stripped agencies of their independence by making them directly accountable to a part of the presidency: the office of management and budget (OMB). The OMB is led by Russell Vought, founder of the rightwing Center for Renewing America (CRA) thinktank and one of the primary authors of the Project 2025 plan for an authoritarian takeover of government.

Vought is behind other measures to enhance Trump’s control on the basis of unitary executive theory, including a move to allow the president to override Congress’s spending decisions by blocking or reallocating funds, a dramatic shift in power if it is allowed to stand. Vought has also spoken about driving civil servants out of work by so traumatising them that they do “not want to go to work because they are increasingly viewed as the villains”.

Bowman said the true intent of the order was revealed by the president’s decision to exempt some actions of the Federal Reserve from OMB oversight.

“The reason plainly is that he is afraid that if he were to simply declare that the Federal Reserve is no longer independent, that would drive the markets crazy and risk a financial panic,” he said.

“But it puts the lie to the notion that this is some sort of constitutionally based declaration, because if independent agencies are in their nature unconstitutional then, if you’re the president, you don’t get to pick and choose which ones you’re going to leave independent. Either it’s constitutional to have independent agencies, or it’s not.”

Even some conservatives who support some of Trump’s measures are alarmed by a provision in the executive order that declares that the president, or the attorney general under the president’s control, shall make the final interpretation of the law for the executive branch in everything from issuing regulations to positions on litigation.

Gregg Nunziata, executive director of the conservative Society for the Rule of Law which has been strongly critical of some of Trump’s actions, said the president had a point about the constitutional legality of the independent agencies, even if he questioned his motives in wanting to take control of them.

But Nunziata is disturbed by “the increasing suggestions from the White House that the law is what the president says it is”.

“The law is what Congress passes and the supreme court interprets, and the president has an obligation to obey the law. He has an obligation to hire lawyers who make a good faith efforts to interpret what the law requires, not to hire lawyers who are going to be writing him permission slips to do whatever he might like,” he said.

Bowman said the section amounted to a declaration that the president’s opinion on the law overrides everyone else in government.

“That’s just crazy stuff because, in essence, what it’s saying is if the president wakes up one morning and says, ‘I think all these statutes that criminalise bribery really shouldn’t apply to me, my family, my friends or executive branch officials at all, and that’s my legal opinion,’ the justice department would have to adopt an interpretation of federal bribery laws that is completely at odds with their obvious meaning,” he said.

Yet again, Trump’s actions raise the question of whether the executive order will stand. Bowman is not confident that the other pillars of the US’s system of checks and balances will do their job to protect democracy.

He said conservatives on the supreme court have already demonstrated their sympathy for the unitary executive theory by ruling that the president has immunity for acts in his official capacity.

“The principal check against executive overreach is the power of Congress, but right now he has utterly squelched Republicans in Congress. They have a plethora of tools they could use to stop this but, at present, they are utterly terrified of using them,” he said.

“The normal checks against dictatorial actions have already been suppressed or are in the process of being so.”