A great piece that needs to be taken seriously. Functionally many of these institutions have behaved relatively independently by tradition or norms but the current situation shows that tradition and norms are no longer sufficient. Our government has been captured by a criminal enterprise that will do anything to project its power, punish opponents, and enrich its members. Structural reform like you propose is the only way we can move forward without the risk of this happening again. And throw in Supreme Court reform too. Ours is broken beyond repair in its current iteration.
Is it "norms" that made things work pre-Trump? I always thought that POTUS was supposed to "take care that the laws are *faithfully* executed" where "faithful" means faithful to the Constitution, and founding principles (such as equality before the Law), and "faithful" to the intent of Congress in passing any particular law. Thus, prosecutorial independence is required for "faithful" in the case of federal prosecution, while "faithful" includes broad executive discretion in case Congress, say, passes a law that some river should be dammed, or a navy should be built. None of this, I thought, limited Congress' ability to create, for instance, agencies that don't report to POTUS.
I'm not a lawyer, but I always had the impression that unitary executive "theory" is some nonsense based on nothing.
Have you missed the several rulings from SCOTUS in recent years substantially cutting back Congress' power to create agencies that don't report to POTUS? To put it another way, you may always have "had the impression that unitary executive 'theory' is some nonsense based on nothing," but SCOTUS doesn't agree with you, so a constitutional amendment is needed to resolve that. (See also the 16th Amendment creating the power to impose a federal income tax after SCOTUS struck down a statutory income tax as being beyond Congress' powers.)
Rather than adding a 4th branch, why not eliminate the offices of President and VP from the executive branch? Why exactly do we need a President when the nation would function perfectly fine (better even!) governed by Congress, executive departments, and state governments?
I'm familiar with Federalist #70. Hamilton weighs on the wisdom of multiple executive leaders or an executive council. I'm proposing no executives at all. But not a reversion to the Articles of the Confederation either. The Congress as an elected assembly and executive departments (appointed by Congress) would govern the nation.
We need a “Project 2029”, a comprehensive plan to codify the traditions and norms that have been trashed by this administration. I enjoyed your talk with Ruth Ben-Giatt yesterday. Perhaps you and your fellow autocracy experts and historians like Ruth, Professor Scheppele, Joanne Freeman, Heather Cox Richardson and others could give it a go?
Love this. What about the EPA and National Parks/land management? And it would seem perhaps Education might fit here too, led by actual educators, to save and improve our public school system.
I would add the US Postal Service. It's in the Constitution, but all anyone can think about doing is privatizing it because it "doesn't make enough money".
You mentioned this in a recent talk on Substack…as soneone who knows next to nothing about Law, particularly Constitutional Law, I marvel at the depth of your knowledge (and the grace & buoyancy with which you convey it!)
And the concept you present here, sounds tremendous & needed — I wonder what Laurance Tribe, Constitutional law Professor Emeritus of Harvard University would think of it…
Jill Lepori wrote an article in the Atlantic about the need to Amend the Constitution. She made some great points, none of which I can cite at the moment.
Jill Lepore’s recent book “We The People” (published September 2025) is a history of the US Constitution and the vexing difficulties of the amendment process. It won the 2026 Pulitzer Prize for history.
Her Atlantic article “How Originalism Killed The Constitution” appeared September 10th, 2025.
One interim option that wouldn't require a Constitutional amendment would be to move the U.S. Marshal's Service and Bureau of Prisons out of DOJ and into the judicial branch. If enacted, this could curtail a President taking a "you and whose army" approach to following the law. Of course, this will require a veto-proof majority of Senators and Representatives with spines.
Agreed. I would also move the inspectors general into the legislative, along with the FDA, NIH, NSF, NEA, and every other agency where we want a degree of stability and political independence. I share Asha's vision for what the ideal solution to the lawless presidency would be, although I would tailor the 4 branch narrowly to law enforcement and head it with someone independently elected during the midterms, who is then barred from any other high office. But we should be real about the odds: 14 amendments in 250 years, excluding the civil war and bill of rights. This is at best a generational undertaking. In the meantime, carving chunks out of the executive is the best legislative fix I can see.
Republicans believe the unitary executive bc it advantages them, so only in Republican admins. So it’s not a real theory, right? I see it more like a ‘cheat mode’ for power consolidation. Evaporates the minute a Dem is elected.
We need an Article V Constitutional Convention, ostensibly to make a number of necessary amendments, but in actuality to just create Constitution 2.0 (similar to the convention of 1787 that ripped up the Articles of Confederation) and this would be an excellent cornerstone to Constitution 2.0. Otherwise...
The idea of a Constitutional Convention terrifies me. Deep right-wing republicans have been working through the states for years to get enough to sign on so they can use their agenda to completely rewrite the Constitution ala Project 2025. I don't remember the latest count, but it was a single digit number of states before one would be required.
It would still need to be ratified by the states even after drafting, no matter what faction is running the convention. So it can't be completely polarizing or it will never be adopted by enough states. OR we'll actually have a splintering of the republic sooner rather than later (which I think would be preferable).
Outstanding to think outside the box in a big way. The structure of our government is breaking down rapidly and to exist as the USA over 250 years is an accomplishment other countries in modern times have not been able to accomplish. Go Asha and all the other "women" in this circle of clear thinking. Time to put all these ideas out there and MOVE them forward. Who in the political sphere will support the effort, I wonder.
This has been my crank theory for years: the fourth branch is the bureaucracy.
Montesquieu was writing before the modern bureaucracy, but if you think about it, the military and judiciary are both just special cases of bureaucracy. A bureaucracy is a hierarchy with merit based promotion and internal regulations that addresses a specialist area (war, law, environmental regulation, disability insurance, automobile safety standards, etc). The bureaucracy should be independent (because they are subject matter experts) but responsive to elected leadership (because that’s what democracy is about).
Once you start thinking about bureaucracy as a branch, you can see for example that the crown vs government split in the UK is essentially about bureaucracy vs elected.
My interest in the 4th branch was to dilute the power of the other three, especially the executive. I am worried that grouping together all these independent organizations may reduce their power, if some of the power is not taken from the other branches.
Or course, I also think that pardons should have to be agreed to by the Senate....as a way to reduce the presidency's power.
A great piece that needs to be taken seriously. Functionally many of these institutions have behaved relatively independently by tradition or norms but the current situation shows that tradition and norms are no longer sufficient. Our government has been captured by a criminal enterprise that will do anything to project its power, punish opponents, and enrich its members. Structural reform like you propose is the only way we can move forward without the risk of this happening again. And throw in Supreme Court reform too. Ours is broken beyond repair in its current iteration.
Is it "norms" that made things work pre-Trump? I always thought that POTUS was supposed to "take care that the laws are *faithfully* executed" where "faithful" means faithful to the Constitution, and founding principles (such as equality before the Law), and "faithful" to the intent of Congress in passing any particular law. Thus, prosecutorial independence is required for "faithful" in the case of federal prosecution, while "faithful" includes broad executive discretion in case Congress, say, passes a law that some river should be dammed, or a navy should be built. None of this, I thought, limited Congress' ability to create, for instance, agencies that don't report to POTUS.
I'm not a lawyer, but I always had the impression that unitary executive "theory" is some nonsense based on nothing.
Have you missed the several rulings from SCOTUS in recent years substantially cutting back Congress' power to create agencies that don't report to POTUS? To put it another way, you may always have "had the impression that unitary executive 'theory' is some nonsense based on nothing," but SCOTUS doesn't agree with you, so a constitutional amendment is needed to resolve that. (See also the 16th Amendment creating the power to impose a federal income tax after SCOTUS struck down a statutory income tax as being beyond Congress' powers.)
Rather than adding a 4th branch, why not eliminate the offices of President and VP from the executive branch? Why exactly do we need a President when the nation would function perfectly fine (better even!) governed by Congress, executive departments, and state governments?
Read Hamilton's Federalist #70 (https://billofrightsinstitute.org/primary-sources/federalist-no-70/).
I'm familiar with Federalist #70. Hamilton weighs on the wisdom of multiple executive leaders or an executive council. I'm proposing no executives at all. But not a reversion to the Articles of the Confederation either. The Congress as an elected assembly and executive departments (appointed by Congress) would govern the nation.
We need a “Project 2029”, a comprehensive plan to codify the traditions and norms that have been trashed by this administration. I enjoyed your talk with Ruth Ben-Giatt yesterday. Perhaps you and your fellow autocracy experts and historians like Ruth, Professor Scheppele, Joanne Freeman, Heather Cox Richardson and others could give it a go?
Add Julian Zelizer to the list.
Love this. What about the EPA and National Parks/land management? And it would seem perhaps Education might fit here too, led by actual educators, to save and improve our public school system.
I would add the US Postal Service. It's in the Constitution, but all anyone can think about doing is privatizing it because it "doesn't make enough money".
You mentioned this in a recent talk on Substack…as soneone who knows next to nothing about Law, particularly Constitutional Law, I marvel at the depth of your knowledge (and the grace & buoyancy with which you convey it!)
And the concept you present here, sounds tremendous & needed — I wonder what Laurance Tribe, Constitutional law Professor Emeritus of Harvard University would think of it…
Again, thank you Asha :)
Jill Lepori wrote an article in the Atlantic about the need to Amend the Constitution. She made some great points, none of which I can cite at the moment.
It's 6:00AM and I've had one sip of coffee.
I should read it again, and I encourage all to!
Jill Lepore’s recent book “We The People” (published September 2025) is a history of the US Constitution and the vexing difficulties of the amendment process. It won the 2026 Pulitzer Prize for history.
Her Atlantic article “How Originalism Killed The Constitution” appeared September 10th, 2025.
Thanks for fleshing out my caffeine starved thoughts.
Nice
https://www.theatlantic.com/magazine/archive/2025/10/constitutional-originalism-amendment/683961/?gift=09Vtj5StQl27VfDzZJFoe_EljL01wEf4P7HhiKAWjR0&utm_source=copy-link&utm_medium=social&utm_campaign=share
Thank you for posting the article as I am somewhat tech deficient on that maneuver!
One interim option that wouldn't require a Constitutional amendment would be to move the U.S. Marshal's Service and Bureau of Prisons out of DOJ and into the judicial branch. If enacted, this could curtail a President taking a "you and whose army" approach to following the law. Of course, this will require a veto-proof majority of Senators and Representatives with spines.
Excellent idea. The Necessary and Proper Clause is an underappreviated and underutilized provision, IMO
Agreed. I would also move the inspectors general into the legislative, along with the FDA, NIH, NSF, NEA, and every other agency where we want a degree of stability and political independence. I share Asha's vision for what the ideal solution to the lawless presidency would be, although I would tailor the 4 branch narrowly to law enforcement and head it with someone independently elected during the midterms, who is then barred from any other high office. But we should be real about the odds: 14 amendments in 250 years, excluding the civil war and bill of rights. This is at best a generational undertaking. In the meantime, carving chunks out of the executive is the best legislative fix I can see.
Republicans believe the unitary executive bc it advantages them, so only in Republican admins. So it’s not a real theory, right? I see it more like a ‘cheat mode’ for power consolidation. Evaporates the minute a Dem is elected.
We need an Article V Constitutional Convention, ostensibly to make a number of necessary amendments, but in actuality to just create Constitution 2.0 (similar to the convention of 1787 that ripped up the Articles of Confederation) and this would be an excellent cornerstone to Constitution 2.0. Otherwise...
Nova Anglia secedenda est
The idea of a Constitutional Convention terrifies me. Deep right-wing republicans have been working through the states for years to get enough to sign on so they can use their agenda to completely rewrite the Constitution ala Project 2025. I don't remember the latest count, but it was a single digit number of states before one would be required.
It would still need to be ratified by the states even after drafting, no matter what faction is running the convention. So it can't be completely polarizing or it will never be adopted by enough states. OR we'll actually have a splintering of the republic sooner rather than later (which I think would be preferable).
Nova Anglia secedenda est
This is brilliant. Once again Trump has exploited and weaponized a structural problem. This really needs to be done.
We would need a way to stop the executive or judicial branch from firing anyone on the 4th branch and installing their own people.
Outstanding to think outside the box in a big way. The structure of our government is breaking down rapidly and to exist as the USA over 250 years is an accomplishment other countries in modern times have not been able to accomplish. Go Asha and all the other "women" in this circle of clear thinking. Time to put all these ideas out there and MOVE them forward. Who in the political sphere will support the effort, I wonder.
Interesting and forward thinking.
Excellent idea! I think there should also be some kind of enforcement department. If Trump was found guilty of a crime right now who would arrest him?
FBI is part of DOJ!
"we have to go big or go home"
Truer words were never said. I love the idea of a constitutional amendment. It's time. Otherwise we're f---ed.
This has been my crank theory for years: the fourth branch is the bureaucracy.
Montesquieu was writing before the modern bureaucracy, but if you think about it, the military and judiciary are both just special cases of bureaucracy. A bureaucracy is a hierarchy with merit based promotion and internal regulations that addresses a specialist area (war, law, environmental regulation, disability insurance, automobile safety standards, etc). The bureaucracy should be independent (because they are subject matter experts) but responsive to elected leadership (because that’s what democracy is about).
Once you start thinking about bureaucracy as a branch, you can see for example that the crown vs government split in the UK is essentially about bureaucracy vs elected.
This is just so obvious! Seems like I came up with the same proposal. I would definitely like to see more details and a structured proposal! I started working on one: https://www.wiigf.com/2026/03/axioms-to-guide-new-united-states.html?m=1
I’m definitely a new subscriber thanks to Heather Cox Richardson and Bluesky.
Thank you!
My interest in the 4th branch was to dilute the power of the other three, especially the executive. I am worried that grouping together all these independent organizations may reduce their power, if some of the power is not taken from the other branches.
Or course, I also think that pardons should have to be agreed to by the Senate....as a way to reduce the presidency's power.
And I'm a big fan of people's congresses.
-Mike