Beginning 2025, the Democracy Project at NYU Law School produced a series of essays by legal analysts and commentators from across the political and ideological spectra on how to preserve democracy, to which I made a contribution titled, “Bring Back Congress.” The Democracy Project is now producing a follow up series that asks, simply, “What’s Next?” Continuing on my theme of reinvigorating the vital role — the constitutional duty — of Congress to rein in executive excess, I’ve contributed a piece called, “Let Congress Sue Over Abuses of Executive Power,” which appears on the project’s website today (where the excellent contributions of other writers are also accessible).
Regular readers will recognize that I’m giving ground here. I’ve always thought it implausible, given the formidable authorities the Constitution endows in Congress, that the Article I branch should turn to the Article III branch to do its heavy lifting. But for the reasons I try to explain in the piece, the Constitution’s framework cannot function if the executive, whose job is to enforce laws, usurps lawmaking power with impunity:
This is not an acceptable outcome because the brute fact that induced the Framers to divide authority and give Congress the whip hand has not changed: the concentration of powers to both make and execute law in a single set of hands remains the roadmap to tyranny. The president has to be prevented from decreeing laws and then enforcing the decrees. Not just the incumbent president, any president.
The full essay is here.