How To Save Congress From The Supreme Court

Seven years ago last month, President Donald Trump remarked that he had “an Article II where I have the right to do whatever I want as president.” This statement was widely mocked during his first term, but it appears now to be generally true as a matter of practice. The second Trump administration has broken numerous federal laws, ransacked the Treasury, threatened the states, and even defied the courts from time to time.

The Supreme Court, with rare exceptions, has encouraged this behavior. Its current conservative majority has gone to great lengths to expand presidential power while simultaneously weakening Congress. It has operated from a deeply flawed understanding of the separation of powers—one that, despite the majority’s originalist pretenses, would be alien to the Framers in 1789. In doing so, the court has also greatly strengthened itself.

Congress has been the primary victim in this two-branch conspiracy. But the real injury is to the American people themselves. Hyper-presidentialism has robbed the American people of their natural way to govern themselves. It has transformed a two-and-a-half-century-old constitutional order into a semi-Bonapartist regime, where a national executive’s election is treated as a referendum on the national soul, subject only to review by a guardian council of unelected jurists.

Americans must not conflate the weakness of Congress’s current members with the weakness of Congress as an institution. Trump and the Supreme Court often insist that it is the president who must play the central role in American political life. This is not how the Constitution was designed to work, which is why it increasingly does not seem to work at all. Congressional primacy must be restored, and the cult of the presidency must be defeated.

Perhaps the clearest articulation of this presidentialist vision can be found in Chief Justice John Roberts’s majority opinion in Seila Law v. Consumer Financial Protection Bureau. The 2019 case centered on whether Congress could lawfully structure the CFPB to be overseen by a single director who could only be removed for cause by the president. To answer this question, Roberts laid out an overarching vision of the separation of powers.

Quoting from a variety of sources, the chief justice argued that the Framers “split the atom of sovereignty itself into one federal government and the states” to prevent “abuse[s] of power” and preserve “liberty,” thereby creating our federal system. From there, “they divided the powers of the new federal government into three defined categories, legislative, executive, and judicial,” Roberts explained.

“They did not stop there,” he continued. “Most prominently, the Framers bifurcated the federal legislative power into two chambers: the House of Representatives and the Senate, each composed of multiple members and senators.” The presidency, he claimed, “is a stark departure from this tradition,” with a unity of vision that reflects the Framers’ own supposed preferences.

The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” See The Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id., No. 70, at 475–478. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.”

“To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in government,” Roberts concluded. “Only the president (along with the vice president) is elected by the entire nation. And the president’s political accountability is enhanced by the solitary nature of the executive branch, which provides ‘a single object for the jealousy and watchfulness of the people.’”

This creation myth is cohesive but unpersuasive. Contrary to Roberts’ telling, the Framers did not create Congress in a vacuum. There was no “atom” to be split. The Constitution was built upon existing institutions, including a multitude of state legislatures and an effective but ramshackle provisional government. This depiction of events might be tolerable if you must explain the Constitution to children. Its detachment from historical reality makes it poorly suited for a Supreme Court opinion.

Roberts also fundamentally misreads Federalist Number 70. As I’ve noted before, Hamilton wrote it to explain the virtues of a single executive, like our presidency, over a plural executive. In the late 18th century, some states like Pennsylvania vested their executive powers in councils instead of governors. Ancient and medieval republics in Europe also often had plural executives: Rome’s consuls, Carthage’s shofets, Sparta’s ephors, Athens’s archons, and so on.

Hamilton forcefully argued that a single executive would be more efficient and accountable than multiple chief magistrates, who might evade public scrutiny or conspire together to deprive the people of their liberties. Along the way, he noted that “differences of opinion” and the “jarrings of parties,” which he described as unavoidable in legislative bodies, would be ill-fitting for an executive branch. To read Federalist 70’s commentary on plural/single executives as a debate over legislative/executive power is like arguing that “thou shalt not steal” forbids the Bessemer process.

From there, Roberts made a number of additional historical errors. For one thing, the Framers did not make the president democratically accountable as he claimed. The Constitution gives state legislatures the discretion to choose how to appoint electors. Many states opted for some form of popular election, but some legislatures in the early republic simply appointed them. They also set up an electoral college to further distance the president from the people. To that end, the presidency is the only elective office in the entire republic where you can get the most votes and lose. That is not a strong conduit for democratic accountability, as the last decade has shown.

But the most important heresy by Roberts and the conservative majority is their overall perception of Congress itself. The Framers did not view “the legislative power” as a “special threat to individual liberty.” On the contrary, the entire path from independence to ratification can be seen as a long campaign to create and empower a national legislature to govern—and govern effectively—on the people’s behalf.

In the beginning, there was only Congress. The first concept of a national legislative body for the American colonies emerged in the 1750s. Benjamin Franklin proposed one at a gathering of delegates in Albany, New York, to coordinate colonial involvement in the French and Indian War. It would consist of a “president-general” who was “appointed and supported by the Crown” and a “grand council” of representatives from the various American colonies, in proportion to their relative populations.

This plan did not go into effect, but the idea of continental unity persisted and grew. Twenty years later, Franklin was among Pennsylvania’s delegates to the Continental Congress, which gathered in Philadelphia in 1774 to discuss a unified response to the colonies’ disputes with the British government. When no peaceable solution could be found, the delegates declared independence from the British Empire two years later.

Many casual depictions of early American history fast-forward from the Declaration of Independence to the Constitution’s ratification and George Washington’s presidency in 1789. But the Continental Congress did not disband or disappear after declaring independence. To the contrary, it played a central role in organizing American resistance to British rule as a provisional government of sorts. The Continental Congress sent envoys to foreign powers for aid, cajoled states into contributing funds and materiel, supervised the war’s conduct, paid and equipped soldiers, appointed generals, including Washington himself.

Washington was a superb general, albeit one who spent most of the war trying to keep the Continental Army out of a decisive battle with superior British forces. He was also an accomplished president who laid the framework for the early republic. But his most celebrated trait for early Americans was his loyalty to Congress, both as an institution and an idea. His conduct during and after the war entrenched civilian control of the military—and, more specifically, to Congress—into the basic fabric of American governance.

As the war drew to a close, the Founders transformed the Continental Congress from a provisional wartime government into a first attempt at a national government. “Certain I am that unless Congress speaks in a more decisive tone—unless they are vested with powers by the several states competent to the great purposes of war, or assume them as a matter of right, and they, and the states respectively, act with more energy than they hitherto have done—our cause is lost,” Washington wrote in a letter to a colleague in 1780.

The Articles of Confederation, enacted in 1781 two years before the war’s end, largely preserved the national government as it was. Each state had one vote in Congress, as they had in the pre-Confederation version, and unanimity was required to get most things done. But its enforcement powers were ephemeral, it authority to collect revenue was limited, and it was largely dependent on state governments to function and carry out its will. These manifest flaws soon prompted the new nation’s leading statesmen to craft a more suitable replacement.

Contrary to the presidentialist narrative, the Framers drafted the Constitution to empower Congress, not to weaken it. They endowed it with numerous powers once held only by the states, whose own legislatures were considered by Madison and others to be unruly and untrustworthy. “In addition to correcting the deficiencies of the Articles of Confederation,” Gordon Wood, the preeminent historian of the founding era, wrote in his 2009 book, “the Constitution was intended to restrain the excesses of democracy and protect minority rights from overbearing majorities in the state legislatures.”

In an April 1787 letter to Washington, one month before the Constitutional Convention began in Philadelphia, James Madison described at length how he thought Congress should be structured under the new national charter. He touched upon numerous topics that would arise at the upcoming convention in Philadelphia: the representation formula for Congress, the transfer of powers to it from the states, the creation and jurisdiction of national courts, the supremacy of national law over state law, and so on.

“Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty; and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable,” Madison told his fellow Virginian, “I have sought for some middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.”

This was a remarkable letter, one that foreshadows much of what would become the Constitution. Madison’s blueprint outlines some checks on Congress, such as bicameralism, but only in the context of also granting it extraordinary new powers. As for the “national executive,” he wrote to the man who would eventually be the first president, “I have scarcely ventured as yet to form my own opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed.”

During the convention, Madison also advanced some proposals to give Congress even greater powers than what it ultimately received. One of them, for example, would have given the national legislature the ability to veto any state law. What ultimately emerged from the debates in Philadelphia was a far stronger legislature than had existed under the Confederation. Congress now had the exclusive power to levy tariffs—the principal source of revenue in the fledgling republic—as well as the ability to levy other taxes. It could raise a national army and regulate state militias. It could regulate interstate commerce and set rules for naturalization.

While the Constitution separated the executive, legislative, and judicial branches, there was also a clear winner in the checks and balances. Congress can remove presidents and judges from office by impeachment, while neither branch can affect or alter Congress’s membership or composition. Congress alone decides how the executive and legislative branches are structured. It can create and destroy executive departments, and it can establish and abolish the lower federal courts.

For practical reasons, there are roughly two million federal employees to carry out the functions of the federal government these days. But constitutional government could theoretically exist with just four people outside of Congress: a president, a vice president, a single federal district-court judge to hear trials, and a chief justice of the United States to review those decisions. That would be highly impractical, of course, but it illustrates that much of what we think of the “executive branch” and the “judicial branch” is merely a result of congressional preference.

Congress could vote tomorrow to abolish the White House, for example, both literally by selling off the building to private owners and figuratively by defunding the president’s staff of personal advisors in the West Wing. There is nothing in the Constitution that says the president must get free room and board. The president’s salary is irrevocable, but the many perks he enjoys—access to Air Force One and a fleet of luxury limousines, a retirement pension and free healthcare, an oil painting of himself somewhere down the line, and so on—come from the public fisc, and thus from Congress.

The Supreme Court didn’t even have its own building until the 1930s. It used to hear cases in the Capitol’s basement, which may have helped keep it humble. Only a handful of cases are heard before the Supreme Court on its original jurisdiction, which is constitutionally mandated. If Congress so wished, it could remove the Supreme Court’s appellate jurisdiction altogether or reduce it to whatever degree it wishes. Congress’s good graces are all that stand between the nine justices and a future where they serve as the world’s most prestigious admiralty court.

Alternatively, and perhaps more cruelly, Congress could eliminate the court’s ability to choose the cases that it takes. Only in 1891 did Congress begin to grant the Supreme Court the ability to reject some cases, and only after Chief Justice William Howard Taft cajoled lawmakers in the 1920s did they grant the court the power to turn down most of the petitions it receives. Perhaps the justices would have less free time to cook up things like “presidential immunity” if they had to review every patent dispute and criminal appeal in the republic.

To be clear, I am not proposing that Congress actually do these things. I only wish to emphasize that the federal government as we know it today is Congress’s creation, not the president’s or the chief justice’s. Meanwhile, what can the other two branches do to Congress? Not much. The president can veto the laws it enacts, but even that can be overridden by a two-thirds vote. Lawmakers are also immune from prosecution while going to and from Congress, or for anything they say on the floor. The Supreme Court can strike down federal laws as unconstitutional—a mighty power, to be sure. Congress can respond by expanding the court, limiting its jurisdiction in specific cases, or proposing constitutional amendments for the states to ratify.

Nor do I mean to suggest to overstate my case. Congress did not inherit the English doctrine of parliamentary supremacy. Parliament, in the words of one eminent British legal thinker, “can do every thing which is not naturally impossible.” Congress, by contrast, is bound by its enumerated powers in Article I. It is only one actor on a vast constitutional stage that includes the other two branches as well as the states. Nonetheless, Congress is designed to be the leading figure in our national drama, while the other two branches largely exist to serve in supporting roles.

When the Constitution tells the president to “take care that the laws be faithfully executed,” it is Congress’s laws that he must carry out. When the Supreme Court hears cases and controversies, it is often Congress’s laws that must be applied. In other words, if the Framers truly viewed “the legislative power” as a “special threat to individual liberty,” as Roberts claimed, they did a fairly poor job of showing it.

Roberts leaned heavily on the Federalist Papers to make his case. Madison, Alexander Hamilton, and John Jay wrote them during the ratification debates as a defense of the Constitution’s structure and design. Those papers can be instructive as to the Framers’ intent in some areas, but they must be taken in the context in which they are written. They are a series of arguments made on the Constitution’s behalf, with points made to suit their audience’s skepticism and doubt. Even then, the papers illustrate the purpose of the constitutional project. Their authors spend so much time explaining the constraints on Congress precisely because they imbued it with so much power.

Madison described Congress’s powers in Federalist 48 as “at once more extensive, and less susceptible of precise limits” than the other two branches. The presidency, he wrote, is “restrained within a narrower compass” and “more simple in its nature,” while the judiciary’s power under Article III is “described by landmarks still less uncertain.” Because of their limited powers, Madison explained, “projects of usurpation by either of these departments would immediately betray and defeat themselves.”

Our present situation does not provide Madison wrong, though it does illustrate how far things have fallen. “In republican government, the legislative authority necessarily predominates,” he would later argue in Federalist 51. The president essentially has four real powers that are entirely his own: the power to pardon federal offenses, the power to veto legislation, the power to nominate officials for federal offices, and (with some limits) the power to dismiss Senate-confirmed officials from their posts. To the extent that the executive power exists beyond that, it is to carry out Congress’s wishes.

Restoring congressional primacy will require both rethinking and restoring how the federal government works. For the courts, it means giving greater deference to the legislative process. Some of the Supreme Court’s worst moments came when it superimposed its own judgment over that of Congress. After the high court established judicial review in Marbury v. Madison, it went another half-century before striking down another act of Congress. That decision, Dred Scott v. Sandford, abolished the Missouri Compromise and helped precipitate the Civil War.

Dred Scott may have been the most inglorious use of judicial review, but it was hardly the only one. The Supreme Court overturned federal child-labor laws in the progressive era under now-abandoned theories of congressional power. It waged war against FDR’s New Deal for most of the 1930s until the threat of judicial reform forced it to back down. After 1937, the court did not limit Congress’s powers under the Commerce Clause again until a critical mass of conservative justices returned to the court in the 1990s.

Now the Supreme Court overturns and invalidates federal laws at an alarming clip. It has invented an entire arsenal of weapons to do so. Under the “major questions doctrine,” the court can invalidate any regulatory move if it thinks Congress did not “speak clearly” enough in the authorizing statute in question—in practice, this has become a subjective means of vetoing Democratic presidents’ policy items. By abandoning Chevron deference, the high court gave conservative judges in lower courts a tool to adopt bizarre readings of federal laws instead of deferring to reasonable interpretations by regulatory agencies on Congress’s behalf.

Legislation is the product of more than just a vote in two chambers of Congress. It reflects the culmination of election platforms and campaign promises between representatives, senators, and their voters. Every major bill comes with a delicate series of negotiations and compromises between legislators, stakeholders, interest groups, and even the other two branches. Those coalitions, once formed, are often temporary in nature because their work is thought to be finished. To invalidate this complex work on a habitual basis, as the Supreme Court has recently done, is to render American democracy pointless and frivolous.

The court’s conservative majority often engages in some sleight of hand when it comes to Congress and its powers. It is common for the court to substantively limit Congress’s powers while performatively claiming to protect it from executive overreach, as in the major-questions doctrine cases, or by insisting that Congress can still act in the future. In the 2013 case Shelby County v. Holder, for example, the Supreme Court struck down a key provision in the Voting Rights Act of 1965 on the grounds that Congress had not sufficiently updated that provision to reflect what it saw as significant changes in the South. It also claimed that it was upholding the “equal sovereignty of the states,” which appears to be a ticket good for one ride only.

While the court claimed said that Congress “may draft another formula based on current conditions,” the destruction of the rest of the VRA casts serious doubts about that promise. It is not surprising that conservatives fear a powerful Congress, for it is a powerful Congress that has often achieved the most far-reaching changes to American society. In the 1860s and early 1870s, Radical Republicans used their legislative supermajority to pass multiple laws and constitutional amendments to build multiracial democracy in the South. Progressives in Congress at the turn of the 20th century enacted the first federal labor, antitrust, and consumer-protection laws.

Franklin D. Roosevelt and his allies may have conceived of the New Deal, but it was Congress that actually enacted Social Security, funded public-works programs, regulated the banks, and expanded labor rights. Lyndon B. Johnson’s greatest triumphs came from working with Congress to pass civil-rights laws and create new social programs like Medicare and Medicaid. Most of the nation’s most successful presidents actually owe a healthy share of credit to their colleagues in the legislative branch.

I have argued before that Congress must expand the Supreme Court because the conservative majority cannot be trusted in the wake of Trump v. United States, the infamous immunity decision from two years ago. That ruling crystallized the court’s upside-down understanding of the president’s role in the constitutional order by giving him an unwritten absolute immunity from criminal prosecution—one that goes far beyond the explicit and conditional immunities that the Constitution actually grants to lawmakers. This case arose in the context of Trump’s plot to overthrow the 2020 presidential election and, eventually, the attack on Congress itself by his supporters. By holding the high court accountable for that ruling, Congress would also be defending itself from future assaults.

Congress must also revisit the amount of freestanding discretion that it gives the president. Many of Trump’s worst abuses as president have come from finding loaded guns left lying around by past generations of lawmakers, so to speak. The Supreme Court blocked Trump from deploying the National Guard to Chicago and other cities last December, recognizing that it exceeded the powers granted by Congress under federal law. At the same time, legal efforts to block the deployment of troops of D.C. have failed because Congress explicitly (and unwisely) granted that discretion to the president with few constraints.

A wide range of “emergency” laws enacted by Congress over the past century gave powers to presidents under the assumption that they would be used wisely and legitimately. That is clearly no longer the case. While the Supreme Court blocked Trump from imposing hundreds of billions of dollars worth of tariffs on the nation’s top trading partners earlier this year, Congress might rethink whether it should outsource so much discretion to the White House under the International Emergency Economic Powers Act of 1977. Perhaps the most urgent target for reform is the Insurrection Act, which Trump and his allies view as a flip-switch for authoritarian rule.

Most importantly, Congress must rejuvenate itself. One good place to start would be by rebuilding its institutional expertise. Before the 1990s, Congress “operated one of the world’s premier scientific advisory bodies” and employed an “extensive network” of shared policy-expert staffers who helped inform legislation, according to a 2013 study. After the 1994 midterms, then-Speaker Newt Gingrich abolished the Office of Technological Assessment and defunded much of Congress’s policy-expert staff. The result was a more partisan and less knowledgeable workforce on Capitol Hill that became reliant on partisan think-tanks for policymaking and expertise.

Other Gingrich-era changes centralized power in the speaker’s office, weakening committee chairs and diminishing the power of rank-and-file members to influence legislation. In tandem with broader political and media trends, the House soon devolved into a more performative institution where lawmakers, now robbed of the ability to deliver substantive changes for their constituents, increasingly turned to partisan theater to raise their public profile—and their re-election chances—in Washington.

Naturally, reversing these changes would not fix American politics in one stroke. There are deeper reforms that could be undertaken as well. Adopting proportional representation would restore competitive elections to the House and end the scourge of gerrymandering forever. House gerrymanders contributed mightily to the polarization of American politics over the past 25 years. By shifting energy and attention back towards general elections instead of party primaries, there would be fewer incentives for extremist candidates.

Congressional primacy is not merely a matter of passing the right laws and installing the right justices. It is also about telling the truth about our constitutional order. Americans have a consistently low opinion of Congress as an institution, and not without cause. Legislators who are not willing to forcefully defend and rebuild the legislative branch should not be elected to it, no matter their party affiliation. This country was not meant to be ruled by the whims of presidents and justices, but rather governed by a strong, forceful Congress. The proper balance of powers must be restored.