A tectonic shift is occurring in the balance of power among the branches of the federal government. The legislative branch is ceding more of its power to the executive branch, and the judiciary may not be equipped or inclined to stop it. It could upend the balance of power that has stabilized our government and sustained our democracy for almost 250 years.
Over the decades, Congress has been slowly giving up its leadership responsibilities, which have been enabled by leadership in the Democratic and Republican parties. Presidents of both parties — including George W. Bush, Barack Obama, and Joe Biden — have increasingly filled the vacuum with more assertive executive actions. Now, however, the Trump administration is moving more aggressively than any president in at least a century to assert powers that were long understood to be delegated to the U.S. Congress under the guise of a mandate by voters.
Although the U.S. Constitution vests Congress with the power to create or abolish federal agencies, the Trump administration has already begun dismantling the U.S. Agency for International Development and the Department of Education, among others. These moves are facing several challenges in federal courts, and when fully adjudicated, it is unclear whether the damage can ever be repaired.
Many other personnel and budget cuts implemented by the Trump administration are also being challenged in courts based on the 1974 Budget Control and Impoundment Act, which states that presidents cannot refuse to spend money appropriated by Congress. As Senator Susan Collins (R-Maine) said recently, the bill is “very clear, and it re-emphasizes the power of the purse that Congress has under the Constitution.” As of March 15, at least 46 court rulings had paused Trump administration executive actions, many on the grounds that the White House is claiming power that belongs to Congress.
Beyond the core constitutional questions raised by the Trump administration lies a more fundamental one: Is this any way to run a country? Most Americans believe the federal government needs to become leaner and more efficient, but the White House’s DOGE effort is merely making wholesale cuts to reduce headcount, with little apparent regard for workers’ skills and talents. As one who has run large businesses for fifty years, I can tell you the Trump administration’s DOGE effort is not running the government like you would run a business — unless you were planning to demolish the business and sell the remains as scraps.
Republicans in Congress, with a few notable exceptions, have been content to let the White House take over more and more of the power historically exercised in Congress. A brief history lesson is in order.
In 1788, James Madison argued in Federalist Paper 51 that dividing political power among the three branches of government — legislative, executive, and judicial — was essential to prevent any single branch from becoming too powerful and abusing its authority.
“The great security against a gradual concentration of the several powers in the same department,” Madison wrote, “consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachment of the other.”
Thus, the Constitution included provisions that empower Congress to check the executive branch and prevent it from dominating the government. Congress’s “power of the purse” is arguably the most consequential. The Constitution also gave members of Congress the power to declare war. It gave them the responsibility to implement tariffs. And it gave them the authority to conduct investigations and hold hearings to oversee the executive branch’s activities.
However, Congress has abdicated much of this responsibility over time, either through legislation or neglect; both parties and all branches are guilty.
Since President George W. Bush passed the Patriot Act in 2001, presidents have had wide latitude to wage war. In 2012, President Obama unilaterally established the DACA program to allow Dreamers to stay in the U.S. after growing frustrated with Congress’ inability to pass immigration reform. Congress has also passed several pieces of legislation to give presidents significantly greater authority over trade and tariffs, including during national emergencies, in response to national security threats, and in the face of unfair trade practices. On April 2, President Trump seized this authority to increase tariffs on foreign goods to their highest rate since the 1930s.
Congress has become so dysfunctional and unwilling or unable to pass legislation that it almost invites the president to fill the power vacuum they leave behind. Consider:
• The 118th Congress, which just ended, passed the fewest laws of any Congress in decades. As the number of laws passed spiraled downward over the years, the number of executive orders from the White House has increased.
• Congress has not passed a budget on time since 1996, nor has it balanced a budget since 2001.
• Cabinet members are being confirmed with one-party votes instead of bipartisan consensus, and it’s taking ever longer to confirm them. Today’s nominees take nearly three times longer to confirm than Ronald Reagan’s nominees.
Congress has become so derelict in its duties that the U.S. Supreme Court may have to force it to do its job. A suit now before the Court involving the Federal Communications Commission challenges the growing practice of Congress “delegating” its powers to federal agencies by writing vague laws that enable federal agencies to determine — rather than execute — policy.
While congressional Republicans and Democrats have each contributed to Congress abdicating its authority, the only players in Washington who can truly reassert congressional authority today are Republicans, who hold a bare majority in both the Senate and the House.
I know what you are thinking: expecting congressional Republicans to stand up to President Trump these days seems like a fantasy. But here are four reasons why they should:
First, it is what most voters, including Republicans, want. A post-election CBS News/YouGov poll found that 77% of all voters (and 56% Republicans) preferred that congressional Republicans should support President Trump’s policies when they agree “but push back when they disagree,” as opposed to just 23% of voters (and 44% of Republicans) who think they should “support whatever Donald Trump wants.”
Second, laws passed through Congress are more durable than presidential executive actions. When new presidents take office, they often rush to reverse their predecessor’s orders. In his first two months in office, President Trump has already rescinded nearly 100 executive actions signed by President Biden. Thirty-eight percent of Biden’s executive orders from his first year in office undid policies implemented in Trump’s first term. Trump, in turn, used 29% of his first-year executive orders to undo Obama-era policies. On the other hand, laws passed by Congress remain the law of the land until Congress affirmatively changes them.
Third, Republicans should listen to Senator Lisa Murkowski of Alaska, who recently said it’s possible to be a “100-percent supporter of President Trump and still stand up for the institution of the Senate, for the legislative branch, with the authorities that are prescribed to us specifically by the Constitution.”
Finally, if protecting the institution of Congress and the Constitution doesn’t provide sufficient reasons to stiffen Republicans’ spine, they should listen to something else Murkowski said:
“When the executive blows by Congress or rolls right over Congress, and we allow that, we are ceding our responsibility. If we do not challenge that, if we say, ‘Well, we like [Trump’s] policies, and so therefore we’re going to cede some of our authority’ — do not think that this is the last time you will see that.”
Let me put a finer point on what Senator Murkowski said. For every power President Trump claims, congressional Republicans should ask themselves: Would I be okay with a future President Alexandria Ocasio-Cortez citing this power to implement their agenda? If the answer is no, you should do everything you can to stand up now and protect the power that rightfully belongs to Congress.
After the American Revolution gave us a country, our Founders established a democratic system that delivered change through evolution. They created three separate branches of government because they believed in the importance of checks and balances and that “ambition must counteract ambition.” Well, it’s time for members of the U.S. Congress to rediscover their ambition and reassert their authority as a coequal branch of government working for the benefit of all Americans.
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