America’s Test

Persuasion | Francis Fukuyama

American liberal democracy faces severe institutional pressures as executive power expands and traditional checks against presidential overreach deteriorate. In recent political developments, the United States Congress has largely rubber-stamped executive agendas, while key elements of the executive branch—specifically the Department of Justice—have increasingly functioned as direct instruments of presidential will.

Institutional friction requires functional separation. Concurrently, major civil society organisations, including private corporations, prominent law firms, and higher education institutions, have frequently sought accommodation with the presidential administration rather than mounting active resistance. Despite these systemic vulnerabilities across legislative oversight mechanisms and civic institutions, democratic backsliding is not an inevitable trajectory. The overall resilience of the constitutional framework relies on specific institutional counterweights that continue to operate independently. As global authoritarian trends intensify, the ultimate test for the American political system centers on whether these remaining checking institutions can prevent the total concentration of power within the executive branch.

Comment

The breakdown of inter-branch checks reflects a structural departure from the institutional equilibrium designed in Federalist No. 51. When the United States Congress declines to exercise its investigative power under Article I, judicial review becomes the sole constitutional barrier against executive overreach. The Department of Justice's operational realignment under executive direction demonstrates how administrative discretion can reconfigure federal law enforcement priorities without legislative approval.

This expansion relies on expansive interpretations of Article II of the United States Constitution to bypass statutory confirmation requirements for principal officers. By utilizing acting appointments and executive orders, administration officials circumvent traditional Senate oversight mechanisms. Legal challenges brought under the Administrative Procedure Act of 1946 therefore represent the principal mechanism remaining to restrict unilateral presidential authority.

Strategic Question for Discussion

Which mechanism is more likely to restrict executive authority when the United States Congress yields its oversight role—judicial enforcement under the Administrative Procedure Act of 1946 or constitutional challenges grounded in Federalist No. 51?

The available evidence points toward judicial enforcement under the Administrative Procedure Act of 1946 as the more immediate constraint, given federal courts' willingness to vacate procedural irregularities in agency rulemaking. However, structural remedies grounded in Federalist No. 51 remain dependent on legislative self-assertion, which historical precedents suggest rarely occurs during periods of unified party control.

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