The Cage They Built

There is a fashionable argument on both sides of the aisle today. The presidency has become too powerful. Progressives wring their hands over unilateral executive orders. Conservatives quote Federalist 70's call for energy in the executive and then demand the next president use that energy to dismantle the administrative state by decree. Both sides treat the executive as a battering ram, either for good or for ill. Both sides have forgotten what the Founders actually built. The real story of the Federalist Papers' executive is not about how much power the president has. It is about the cage the Founders built around that power, and how we have quietly, bipartisanly, sawed through the bars. The unique, almost forgotten insight is this. The Framers feared a feeble executive more than a strong one, so they gave the president independence and speed. But they also gave the Senate the real gatekeeping power over personnel and treaties, and gave Congress the sword of impeachment, sharp and ready. We have neutered every one of those checks. And we wonder why the presidency looks like a monarchy on alternating four-year cycles. Let me show you what has been lost, and why recovering it is the only way to preserve the republic.

The Single Executive Was a Check, Not a Blank Check

Go back and read Federalist 70. Hamilton's argument for a single executive, rather than a plural council, is one of the great unsung pieces of constitutional architecture. He writes that energy in the executive is a leading character in the definition of good government. That energy includes unity, decisiveness, the ability to act rapidly in emergencies. The alternative, a committee or a council, leads to blame-shifting, paralysis, and fecklessness. That was the fear. An executive too weak to enforce the laws, repel invasion, or protect property. The Articles of Confederation had no real executive. The result was chaos: states ignoring treaties, Congress begging for money, the nation defenseless. The Founders knew that a weak executive invites anarchy, which then invites a tyrant to restore order. They were not naïfs. They had read their history, the Roman Republic's slide into Caesarism, the endless coups of the Greek city-states. But note what Hamilton does not say. He does not say the executive should be omnipotent. He does not say the president should legislate by executive order. He says the president should execute the laws faithfully. The energy is for enforcing what Congress has passed, not for making up new law on the spot. That is the first cage. The executive is a branch of execution, not legislation. This distinction has been shredded. The modern president issues executive orders that rewrite statutes, delays enforcement of laws he dislikes, and creates policy out of thin air. The Constitution gives him the power to take care that the laws be faithfully executed, not to decide which laws he likes. When a president chooses not to enforce immigration law, for instance, he has broken his oath. The Founders would have recognized that as a high crime and misdemeanor.

The Senate: The Forgotten Gatekeeper

Here is where the modern conversation goes dark. The Federalist Papers devote enormous attention to the Senate's role in constraining the executive, especially in Federalist 76 and 77, also by Hamilton. The president nominates, but the Senate advises and consents. The president negotiates treaties, but two-thirds of the Senate must consent. Why? Because the Founders understood the knowledge problem, Hayek's insight a century and a half early. No single person knows all the capable people in the country. A president may choose his cabinet based on loyalty, campaign donations, or personal whim. The Senate, representing the states and a diversity of interests, has the incentive and the local knowledge to vet those choices. Every appointment becomes a test. Is this person competent? Are they loyal to the Constitution, or to the president personally? Are they the kind of person who will tell the president no when he exceeds his authority? That mechanism has been hollowed out. We now have a confirmation process that is a partisan food fight, or worse, the Senate routinely defers to the president and fills vast ranks of agency officials without serious scrutiny. The result is an executive branch that grows more insulated from the checks the Framers designed. Consider the administrative state. There are roughly four thousand political appointees in the executive branch. Only the top twelve hundred or so require Senate confirmation. The rest are hired by the president or his appointees with no outside check. That means thousands of people making binding rules and adjudicating disputes have never faced a single question from the Senate. The Founders envisioned a system where the Senate would serve as a sieve, catching incompetents, radicals, and cronies. We have replaced that sieve with a fire hose. The Senate has also abandoned its treaty power. The modern president uses executive agreements to bind the United States to international commitments without a two-thirds vote. The Iran nuclear deal, the Paris climate accord, the Open Skies Treaty, all done by executive agreement. The Senate has acquiesced. The result is that the president can make foreign policy by fiat, bypassing the check the Founders considered essential.

The Impeachment Sword: Meant to Be Sharp

In Federalist 65, Hamilton described impeachment as a national inquest into the conduct of public men. It was not a criminal process. It was a political remedy, the ultimate check on an executive who abused power. The Founders expected Congress to use it sparingly but credibly. They imagined a sober, deliberative body examining evidence and rendering judgment on whether an official had betrayed the public trust. What have we done? We have turned impeachment into a partisan weapon. Both parties use it to settle scores, then retreat into safe corners. The result is that the impeachment power has become blunt, not sharp. No president is genuinely afraid of it, and that is precisely the failure the Framers warned about. A check that is never used or used only as political theater is no check at all. The Founders knew that a president who could not be removed by any practical mechanism would effectively be above the law. They gave Congress the impeachment power precisely to prevent that outcome. But when impeachments are driven by party loyalty rather than principle, the sword becomes a rubber knife. Thomas Sowell's framework of constrained and unconstrained visions is essential here. The Founders had the constrained vision of human nature. They knew that power tends to expand, that incentives matter, and that no man can be trusted with unchecked authority. They built a system where every branch had both the motive and the means to resist encroachments. We have dismantled that system by removing the means.

The Unintended Consequences of Energy

Here is where Sowell's insight about intentions versus results applies with full force. The progressives of the early twentieth century wanted a more efficient government. They argued that the separation of powers was outdated and that the president should be the steward of the nation. Woodrow Wilson, the father of modern progressivism, explicitly rejected the Founders' design in favor of a more parliamentary, energetic executive. The result? An administrative state that combines legislative, executive, and judicial power in unelected agencies. The Environmental Protection Agency writes rules that have the force of law, enforces them, and adjudicates disputes. That is the very fusion of powers the Founders feared. It concentrates power in the hands of people who are not accountable to the voters and whose agencies are largely independent of presidential control, or paradoxically, are controlled by the president in ways the Founders never imagined. Hayek's knowledge problem applies here too. No central planner can gather the dispersed knowledge of a free people. But the administrative state is an army of central planners, each writing rules for his corner of the economy. The result is not efficiency but a sprawling, unaccountable bureaucracy that stifles innovation, raises costs, and erodes liberty. The modern president is both too powerful and not powerful enough. He can sign an executive order that rewrites immigration policy overnight, but he cannot fire the career bureaucrats who will slow-walk its implementation. He can nominate a judge, but the Senate's advice and consent has been reduced to a procedural trap. The system is broken on both ends.

The Human Stakes

Why does any of this matter to the ordinary American? Because when the executive is unbound, your liberty shrinks. A president who can unilaterally rewrite environmental policy, immigration enforcement, or education standards is a president who can change the rules of your life without your consent. The Founders gave us a republic precisely to guard against that, a government of laws, not of men. Consider the small businessman. He wakes up one morning to find that a new executive order has raised the minimum wage for federal contractors, or that a new regulation from the Department of Labor has changed his overtime obligations. He had no vote on that order. His representative in Congress had no vote on that regulation. The Founders would have recognized that as a violation of the basic principle of consent. No taxation or regulation without representation. Consider the parent who wants to choose a school for his child. The Department of Education, created by a president with an executive branch reorganization, writes rules that dictate curriculum, testing, and discipline policy. That parent's voice is drowned out by the distant hum of Washington bureaucracy. The Founders believed that power should be kept close to the people. They wrote a Constitution that reserves most governing authority to the states and the people. The modern executive has reversed that equation.

What We Must Recover

The Federalist Papers' vision of the executive was brilliant. A strong, single president to prevent chaos, but hemmed in by a Senate that held the keys to personnel and treaties, and by an impeachment power that could actually remove a rogue. We have broken both of those restraints. We need to restore the Senate's gatekeeping function. That means confirming only those nominees who are truly qualified and committed to the Constitution. It means treating executive agreements as the unconstitutional evasion they are. It means forcing the president to submit treaties to the Senate as the Constitution requires. We need to make impeachment credible again. That means both parties agreeing on a standard of abuse of power that is not partisan but principled. It means being willing to remove a president, regardless of party, when he clearly violates his oath. We need to reassert Congress's legislative power. The non-delegation doctrine, the principle that Congress cannot give away its lawmaking authority to the executive, has been effectively dead since the New Deal. Reviving it would force Congress to write clear laws and take responsibility for the consequences. That is what the Constitution requires. If you care about liberty, you do not need more energy in the executive. You need the executive to be energetic within its constitutional cage. You need a Senate that actually checks. You need an impeachment power that is credible. You need a Congress that legislates instead of abdicating. We have none of those. And until we fix that, we are living in the legislature Madison warned us about, one that has surrendered its own power and let the executive become what it was never meant to be. The Federalist Papers gave us the blueprint. It is past time we read it again, this time with the pages on the Senate and impeachment dog-eared, not just the one on energy. The cage was built to protect our liberty. It is time to rebuild it.