Congress has to step up and take some responsibility for the shaping of public policy.
Congress has to step up and take some responsibility for the shaping of public policy.
D espite the hand-wringing of the commentariat, the fights between the Trump White House and some federal trial judges has yet to reach a “constitutional crisis.” A few federal district judges have issued scores of injunctions temporarily blocking some elements of Trump’s agenda for his first 100 days. But rather than a breakdown in the constitutional order, this jostling fulfills the Framers’ design for the separation of powers, which encourages conflict between the branches of government.
Some blame the problem on an overly aggressive Donald Trump, bent on expanding executive power beyond constitutional limits. Others criticize Democrat-appointed federal district judges, seeing them as politicized activists forming the spearhead of unconstitutional resistance to Trump’s initiatives. In these visions, we have an Imperial Presidency pitted against an Imperial Judiciary.
In fact, the conflict between Trump and the courts has escalated not because of any threat to the Constitution, but because of the dog that did not bark. In the famous Sherlock Holmes story, the great detective solves the case because a guard dog did not bark at night — revealing the dog’s owner to be the killer. Today, the missing dog is Congress. Congress could settle many of the disputes slowing the Trump agenda if it were simply to step forward and fulfill its constitutional responsibilities. As Andy McCarthy observed yesterday, Congress could even defuse the growing conflict between Trump and the courts over the deportation of Venezuelan gang members.
An irresponsible and feckless Congress, however, refuses to assume its core constitutional role. It is barely able to keep the federal government operating through the next six months, will not make core public policy decisions, and rarely enacts meaningful legislation. In the absence of congressional lawmaking, our political system places pressure on presidents to fill the vacuum through unilateral executive orders. Their opponents seek refuge in the courts. The resulting standoffs lead to ugly confrontations between the two branches that Congress can defuse.
The Framers expected the main counterweight to the executive to be Congress, not the courts. In Federalist No. 48, James Madison described Congress as “every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison feared the risk of a legislative tyranny more than an executive or judicial one: “It is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” But rather than an overactive legislature, our constitutional system has to grapple instead with an M.I.A. legislature. Congress’s failure to discharge its proper constitutional functions, not its “enterprising ambition,” explains why our system of separation of powers is not functioning as it should.
Congress’s broad legislative powers could remove any legal controversy over Trump’s drive to reduce the administrative state. Trump wishes to eliminate the Department of Education and fold smaller entities, such as USAID, into larger departments. Presidents, however, do not have the constitutional authority to create or end departments — only Congress does. A Republican Congress could simply pass legislation codifying Trump’s desired closures. Secretary of Education Linda McMahon recently stated that “we will work with Congress” on downsizing her department — a welcome sign.
Likewise, Elon Musk’s drive to impose permanent spending cuts and reductions in employee headcount may also stand on difficult legal grounds. Congress holds the power of the purse, but presidents have historically impounded funds for constitutional reasons, national security, and efficiency. A Republican House and Senate can simply reduce spending and headcount levels to those desired by a Republican president. Alternatively, Congress could use a procedure called “rescissions” to authorize Musk’s spending cuts. “It would be a big mistake if we don’t,” Senator Lindsey Graham (R., S.C.), chairman of the Senate Budget Committee, said about voting on rescissions. “It’s the one way to make DOGE cuts real.” Unlike most legislation, Republicans could clear a rescissions package with a simple majority vote in both Houses. Senator Josh Hawley (R., Mo.) said that Musk was “elated” when he was told of this idea.
In fairness, the fault lies not just with Congress, but also with the White House. Although his own party controls Congress, Trump has been reluctant to ask Congress to underwrite his main initiatives — leaving their constitutional status murky, and driving him toward a confrontation with the courts. Thus, it remains an open question whether a scandal-plagued agency like USAID will continue to exist. And to the extent that Trump has asked for congressional backup for his ambitious program, he has called for the impeachment of a recalcitrant district judge. This is obviously not going to happen: Even if (as is unlikely) the House were to impeach the judge, Senate conviction and removal would require 67 votes. If more than two-thirds of the Senate wishes to remove a judge, it would be far better to pass legislation adopting Trump’s executive orders that would make the cases moot instead.
Of course, Senate Democrats, especially those embittered by the capitulation of Senator Chuck Schumer (N.Y.), the Senate minority leader, on extending government funding, would bend every nerve to defeat these proposals. Nonetheless, these may be political fights worth having. Let Senate Democrats take full responsibility for keeping USAID and the Department of Education afloat, or for continuing the funding of unconstitutional DEI programs at universities, or for holding up the deportation of violent illegal aliens who belong to terrorist gangs. Senate Democrats may even resort to the filibuster to prevent votes on legislation ending government agencies.
But the filibuster does not apply to “reconciliation,” the process by which Congress sets the budget for the year. During this year’s reconciliation process, simple majorities of the House and Senate could set the funding levels for the Department of Education or USAID at zero. Republicans could repeat the exercise when, as inevitably happens at the end of the year, Congress passes a giant omnibus bill to fund the entire government. Democrats would have to vote for a total government shutdown to save these wasteful agencies.
This places the current furor over the Trump administration’s criticism of judges in perspective. Trump and his supporters have called for the impeachment of judges who have stymied its policies, earning a rebuke from Chief Justice John Roberts, who declared that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” But subject to the same political imperative as Trump, Obama and Biden also sought to use executive orders when Congress was paralyzed on immigration or the pandemic response. Indeed, they launched their own attacks on the courts when their agendas floundered in the courtroom. In the Biden administration, the interbranch tension proved so severe that Democrats seriously entertained proposals to compromise judicial independence, such as packing the courts and imposing term limits on the Justices.
Obama
Start with the Obama administration. For President Obama, 2014 was what the White House called a “Year of Action.” Yet Obama faced a Republic-controlled House of Representatives. So he warned, “I am going to be working with Congress where I can . . . but I am also going to act on my own if Congress is deadlocked. I’ve got a pen to take executive actions where Congress won’t, and I’ve got a telephone to rally folks around the country on this mission.”
Earlier, in 2012, Obama decided to act unilaterally to fill two vacant seats on the National Labor Relations Board and one on the new Consumer Financial Protection Bureau. Frustrated with the Senate Republicans’ use of the filibuster to block his nominations, Obama invoked his power under the Constitution’s recess appointments clause to make these appointments in what he claimed was a “recess” of the Senate. This poor decision eventually handed him a 9–0 defeat in the Supreme Court. All nine justices agreed that the Senate, not the president, gets to decide when the Senate is in recess.
A more important episode occurred late in the Obama years, when he created the Deferred Action for Childhood Arrivals (“DACA”) amnesty program. This initiative also grew out of Obama’s frustration with congressional inaction. For almost two decades, Congress had considered — but not enacted — different versions of the “Dream Act,” a legislative amnesty for a group of illegal aliens claiming to have been brought into the country illegally while still children. Obama unilaterally ordered his Department of Homeland Security to implement a form of the failed legislation that granted several hundred thousand members of the DREAM class a reprieve from deportation and work authorization. A court of appeals invalidated the DACA program and its decision was upheld by an equally divided Supreme Court. Again, Congress’s inability to enact legislation produced the conflict between the president and the courts.
Biden
Biden, like Obama, decided to bypass Congress on significant policy calls when he feared that congressional inaction would be the graveyard for them. This fear prompted his usurpation of what even then–House Speaker Nancy Pelosi (D., Calif.) regarded as a congressional prerogative: the power to forgive some $400 billion in student debt. Biden’s unilateral action was struck down by the Supreme Court in Biden v. Nebraska (2023) — prompting Biden to claim that the Court had “misinterpreted the Constitution” in Biden v. Nebraska (2023). Biden thereafter devised other student debt transfer programs designed to get around the Court’s decision. “I won’t back down from using every tool at my disposal to deliver student debt relief to more Americans,” he said. The lower courts blocked Biden’s transparent effort to ignore Nebraska and issue yet another loan forgiveness program under a different statutory claim.
The Democrats vs. the Courts
Today’s critics of the brewing fight between Trump and the courts conveniently ignore the Obama and Biden attacks on the judiciary after they, too, suffered setbacks. To save its signature health-care law, the Obama White House and Senate Democrats heavily criticized Chief Justice Roberts and the Court even before the decision issued. Chief Justice Roberts reportedly changed his vote to uphold Obamacare during the period of escalating Democratic rhetoric against the Court. In 2020, Senator Schumer led a rally in front of the Supreme Court, where he threatened that Justices Gorsuch and Kavanaugh “won’t know what hit them” if they voted against Roe v. Wade. “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price,” Schumer said.
In fact, Democratic threats to the judiciary went beyond today’s impeachment rhetoric. Every 2020 Democratic primary candidate, other than Joe Biden, supported adding more justices to the Supreme Court because of disagreement with its decisions. Even Biden assembled a blue ribbon commission to study overhaul of the Supreme Court. In 2024, President Biden came out in favor of imposing term limits on the Justices. He claimed the term limit was necessary because the Roberts Court is “an extreme court . . . that has been weaponized by those seeking to carry out an extreme agenda for decades to come.” During the last four years, progressive groups have supported a campaign to investigate the personal finances of conservative justices and called for justices Samuel Alito and Clarence Thomas to resign.
Recalling Democratic attacks on the courts is not important just to show that bashing the courts is a common partisan political tactic, rather than a unique constitutional crisis. It also shows that, in the long run, such attacks are an inevitable product of Congress’s failure to play its central constitutional role. Congress has to step up and take some responsibility for the shaping of public policy. The president and the judiciary are not the only constitutional agents.
Trump and Congress
Trump aims to be a great, transformative president, ushering in fundamental changes in the way the federal government works. The obvious parallel to the start of his term is the historic first 100 days of Franklin Roosevelt’s New Deal. But as revolutionary as Trump’s reforms are, they will be ephemeral unless Congress undergirds them with legislation. And cutting Congress out of the action will mean a grinding confrontation with the courts that could defeat many of Trump’s proposals and shake our constitutional system.