Dana Milbank Doesn’t Understand the Constitution

By Charles C. W. Cooke

Thursday, July 02, 2026

 

Dana Milbank, formerly of the Washington Post, now of NOTUS, thinks that he has unlocked a brilliant new One Weird Trick, which will allow the next Democratic president to impose unilaterally a whole host of policies that the party cannot get through Congress. Milbank writes of a “nascent Democratic effort” that:

 

contemplates something far more consequential — and it should be even scarier to Trump’s enablers: ways to use the all-powerful, unitary executive that Trump has invented (and the Roberts Court has blessed) to launch a new Progressive Era, in which a Democratic president imposes by executive fiat government run health care and many other ideas liberals have long dreamed about but lacked the votes to enact. Virtually all of it can be done without Congress, using powers Trump has unlocked.

 

Oh dear.

 

Reading this, one honestly has to wonder whether Milbank has read any of the Court’s recent opinions — and, indeed, to wonder whether he has ever looked, even casually, at the text of the Constitution itself. That supposedly “all-powerful, unitary executive that Trump has invented (and the Roberts Court has blessed)”? It has absolutely nothing to do with substantive presidential power, or, contrary to an assertion by Neera Tanden that Milbank subsequently prints, to do with “the aperture of the powers the federal government has.”

 

The “unitary executive theory” — otherwise known as Article II of the Constitution — holds one thing and one thing alone: That the president, and not anyone else, gets to run his own branch of government. It does not shrink executive power. It does not expand executive power. It has nothing to say about the enumerated powers of the federal government. It is purely, completely, exclusively about personnel, and, thereby, the president’s authority over the powers that the Constitution accords to him.

 

Milbank muses wistfully about those “ideas liberals have long dreamed about but lacked the votes to enact.” But the unitary executive theory is about exactly that: votes. The argument, based on the plain text of the Constitution, is that each of the two elected branches of government must be accountable to the people who were voted in to lead them. Article II, which creates the presidency, begins:

 

The executive Power shall be vested in a President of the United States of America.

 

This means all of that power. If the people vote for Barack Obama or Joe Biden or Donald Trump to run the executive branch, it is Barack Obama or Joe Biden or Donald Trump who must run that executive branch. Not bureaucrats they can’t fire. Not cabinet heads with whom, after Senate approval, they are stuck for the rest of their terms. Not “independent agencies” that exist on some magic fourth plane, inoculated against democratic feedback. The president, who is the sole custodian of the executive Power.

 

But to confirm that the president gets to exercise all of the power of his branch is not increase that power per se. The president gets whatever power the branch inherently gives him, plus whatever power Congress has constitutionally delegated to it. And that’s . . . it. That’s the whole game. In Slaughter, the case to which Milbank is presumably referring, that is all the Court said.

 

Of course, precisely the same rule applies to Article I, which reads:

 

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

 

Again: that means all of that power. The fact that the president also gets to run his own branch has no bearing whatsoever on the guarantees in Article I. They coexist. Congress runs the legislative branch, and the president runs the executive branch. To look at recent decisions that have upheld this principle and conclude, “so I guess the president gets to use the legislative power then,” as Milbank and his friends do, is a bizarre and ignorant non sequitur.

 

Especially given that, in recent years, the Court has proven more, not less, interested in policing the lines between the two branches than it has been in nearly a century. What, I wonder, does Milbank think the recent tariff case was about, if not the Court confirming that the president is not permitted to claim powers that he has not been given by the legislature? How about the student loan case under Biden? Or the never-ending litigation involving the EPA? If there is one message being sent by the Court’s recent jurisprudence it is that if Congress wants certain outcomes, Congress needs to start legislating again. (This even applies to the cases that did not involve statutory analysis or delegation queries, such as the recent TPS case, the bump stock case, the overturning of Chevron, the overturning of Roe, and more.) Much as it may disappoint Dana Milbank, there is no new order in which the next Democratic president would be able to impose “by executive fiat government run health care and many other ideas liberals have long dreamed about but lacked the votes to enact.” That claim is based on a total misunderstanding of our system of government and of the Court’s piecemeal attempts to knock it back into shape.

 

As for Neera Tanden’s idea that:

 

“Trump has discovered, or created, powers that no president has ever had that have been sanctioned by a right-wing Supreme Court. In many ways, Trump has widened the aperture of the powers the federal government has.”

 

This is downright weird. The powers of the federal government exist independently of these disputes between the branches, and are not in any way affected by them. To argue otherwise is akin to arguing that if you change who is driving a car, the car’s engine will get faster. One can take pretty much any conceivable position on Slaughter or Jarkesy or Loper Bright or West Virginia v EPA, and one will not have advanced a case that the federal government has more power or less power. One can believe, as I do, that Congress is not allowed to delegate its power at all, or one can believe, as Elena Kagan (usually) does, that Congress is allowed hand massive amounts of authority to the president and its favored experts, and one’s position will not alter the underlying enumerated powers that Congress enjoys. If, in a new Democratic administration, Milbank, Tanden, and others proceed as if the presidency has carte blanche, they will be neutered quickly by the Supreme Court — which, given the party’s newfound enthusiasm for destroying the judicial branch, may in fact be the point of all this.