George Mason University Libraries and the Center for Mason Legacies (CML) marked Constitution Day with a timely forum on questions of executive power. The speakers’ panel featured experts in three subject areas: in history, CML affiliate and Mason Distinguished University Professor Rosemarie Zagarri; in political science, Schar School of Policy and Government Associate Professor Jennifer N. Victor; and in judicial practice, Jonathan S. Massey, a founding partner of Massey & Gail specializing in appellate and constitutional law. More than one hundred people gathered in Fenwick Library to hear their discussion—ably moderated by CML Director and History Librarian George D. Oberle and Policy and Government and Civil Engagement Librarian Lorena Jordan—of how the role of U.S. president has been conceived and reshaped from the nation’s founding to today.
Zagarri opened by looking not to the 1780s, when the Constitution was drafted, but to the turbulent mid-century that preceded the Revolution. As colonists felt a growing weight from British taxes and restrictions in the wake of the Seven Years (or French and Indian) War, she explained, they began conceiving of not simply George III, himself, as the problem, but “the executive” in its entirety. Debate on structuring the new nation’s government flared over how to avoid a similar concentration of personal power. George Mason, our school’s namesake, at one point even proposed a three-man executive, she noted. Those fears of lodging too much power in one individual motivated anti-federalists and led to separations of power at both the national and state levels, as seen in the many state constitutions crafted in those years. Term limits were another answer to those reservations (including a four-year cap on Virginia governorships in place since 1776). It was mainly George Washington’s personal reputation that overcame these misgivings to enable a singular federal executive, but not without opposition: Mason himself famously warned that “the president could very easily become a king,” Zagarri said, among his reasons for withholding his signature from the Constitution.
Victor’s comments traced a line from those controversies to today’s challenges to democracy. Constitutional conventioneers’ grave fears of “factionalism” or, essentially, political parties, led to weaknesses in the nation’s constitutional design. Institutions, she maintained, are “simply rules,” and so intent were the framers on preventing “factionalism” that they neglected to consider ways to govern partisanship or political parties, leaving us with a Constitution ill-equipped to manage them. Yet parties, she argued, “are essential to democracy.” The current erosion of what she considers democracy’s four pillars—free and fair elections, voting rights, civil liberties, and the rule of law—has moved the country away from robust representative government and further down the spectrum toward authoritarianism. Currently, we stand midway, she believes, at the node of “competitive authoritarianism,” a hybrid regime with elections but fewer institutional checks. This erosion of democratic norms results in many ways from economic inequality, she noted, “one of the primary drivers of polarization and populism.”
Massey’s role on the panel was describing changes in the executive role through recent rhetoric and decisions in courtrooms and judges’ chambers, but he first noted modern constitutional attorneys’ reliance on selectively quoting framers to justify their positions. Because their views ranged from Mason’s fears of central power to Hamilton’s avid federalism, debate from the first U.S. Congress offers more useful comparison, he said, as in creation of the U.S. Treasury and Post Office, neither of which, in their deference to Congress, resembled the “executive” agencies of today.
Massey also addressed today’s conservative fervor for a notional “unitary executive,” based, he explained, on “a textual oddity” between constitutional articles defining Congress and the Executive. (Zagarri described the concept, like “originalism,” as a “smoke screen used to involve history when it’s useful,” and to ignore it when it’s not.) In the idea’s most profound application, Massey said, the Supreme Court ruled into existence broad presidential immunity running counter to the broad “consensus,” at the time of Richard Nixon’s resignation, that he would have enjoyed no such protection from prosecution for Watergate crimes. Today, it has been mainly lower federal courts holding the line against executive overreach, Massey continued, noting the Trump administration has prevailed in only ten of the 350 to 400 court challenges to its powers. This commitment to rule of law by the “Article III judiciary” faces a heavy counterweight, however, in the Supreme Court, not least in its vastly expanded use of “emergency” decision-making, through the so-called shadow docket, over the more deliberative procedures of conventional or, when needed, expedited hearings.
the event's one hundred-plus attendees.
Massey said he looks mainly to three imminent judicial contests areas to gauge the future of executive agency. The first is the Supreme Court’s treatment of tariff challenges: Will a conservative Court bring the same skepticism to bear on the president’s claim of broad “emergency powers” that it previously summoned against regulatory action by Democratic administrations? The Court justified the approach under what it calls the “major questions doctrine,” Massey noted, explained by the late Justice Scalia with the nostrum, “Congress doesn’t hide elephants in mouse holes.” Massey’s second “watch-this-space” area is President Trump’s firing of Federal Reserve Governor Lisa Cook and whether the Court will use it to overturn the 1930s “Humphrey’s Executor” precedent, traditionally barring presidents from dismissing “quasi-legislative” board members. His third window on executive power is if and how the administration uses the shooting of activist Charlie Kirk to seize traditionally Congressional prerogatives like defining “terrorism” and determining organizations’ eligibility for non-profit tax status.
Despite the sobering warnings, panelists in the Question-and-Answer portion emphasized the resilience of American institutions. Zagarri put executive power grabs in historical context by noting they generally happen in wartime, whether hot, cold or undeclared war. Victor similarly tied crackdowns to backlash, comparing the present-day pendulum swing against Black Lives Matter advances to the rise of Jim Crow as a reaction to Reconstruction. In response, however, she noted the robust responses coming from some state governments and governors. Panelists also pointed to the resilience of civil society and the courts.
The Center for Mason Legacies views this informative and thought-provoking discussion as the first of a yearly series looking at the Constitution’s impact and changing meanings.
September 25, 2025