In his first week in office, President Trump displayed an unusually expansive vision of executive authority. He challenged long-established norms and openly defied legal regulations that stood in the way of his ability to accomplish his goals.
Among the norms and regulations the president ignored were the language of the 14th Amendment concerning birthright citizenship, a statute concerning presidential impoundment of funds appropriated by Congress, the recently passed ban on TikTok and a law laying out procedures for dismissing inspectors general. And even before he took office, Donald Trump threatened to bypass the Senate’s role in vetting his nominees for Cabinet positions.
As the New York Times’s Peter Baker explained, “Mr. Trump, in effect, declared that he was willing and even eager to push the boundaries of his authority, the resilience of American institutions, the strength of the nearly 2 1/2 century-old system and the tolerance of some of his own allies.” Baker explained that “even more than in his first term, he has mounted a fundamental challenge to the expectations of what a president can and should do.”
None of that should be surprising.
Recall that in 2019, the president, referring to the part of the Constitution governing the powers of the presidency, said, “I have an Article 2 where I have the right to do whatever I want as president.” Even President Biden pushed hard against the limits of his authority when he canceled student loan debt, or when he, as Baker put it, “declared in his final days as president that the equal rights amendment had met the requirements of ratification and therefore was, in his view, now the 28th amendment of the constitution.”
Baker quotes Jonathan Madison of the R Street Institute, a research organization based in Washington, who argues that Biden “‘used executive power in unprecedented ways after the November election’” and that “‘Trump’s first week in office has reinforced this shift’ in power.”
While Madison and others have focused their attention on the behavior of our recent presidents, I’d like to look at what’s happening at the other end of Pennsylvania Avenue, in Congress. When the constitutional division of powers is challenged, its very survival depends on how lawmakers respond.
Now, and in the recent past, Congress has failed the test and betrayed the vision of the Founders.
Its best articulation is found in the Federalist Papers, written by Alexander Hamilton, John Jay and James Madison, to explain and defend the provisions of the recently adopted Constitution. In Federalist 51, Madison laid out the Founders’ hopes and expectations.
He begins by noting that “In republican government, the legislative authority necessarily predominates.” This assertion summarizes observations he made in Federalists 47 and 48.
There, Madison said that while the president’s power “is carefully limited; both in the extent and the duration of its power,” the greatest threat to liberty would come from Congress, which is “inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude.”
“It is against the enterprising ambition of this department,” Madison said, “that the people ought to indulge all their jealousy and exhaust all their precautions.” The key device for effectuating those precautions is the Constitution’s system of separation of powers and checks and balances.
In Federalist 51, Madison explained that liberty would be best protected by ensuring that the three branches of government are “as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” Beyond that, Madison argued that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”
“The provision for defense,” he argued, “must … be made commensurate to the danger of attack. Ambition must be made to counteract ambition.” And in the key line he explained that for the constitutional design to work, “The interest of the man must be connected with the constitutional rights of the place.”
This meant that members of Congress would have to jealously guard and protect the legislative branch’s authority against exercises of executive power, like those seen under Biden and Trump.
Today, though, lawmakers are often unwilling to do so, especially when the president is a member of their own party. Let me offer a few examples.
On Jan. 24, President Trump defied a law requiring him to give Congress 30 days’ notice before removing inspectors general. How did members of his party in Congress respond? Virtual silence.
Sen. Lindsay Graham, for example, wrote off what the president did by saying that he “technically violated the law” but “he has the authority to do it.” South Dakota’s Mike Rounds said only that he was “waiting for more information about the dismissals and the laws surrounding Congressional notification before weighing in formally.”
Or consider how Republican senators responded in November to Trump’s threat to bypass the advice and consent function by making recess appointments to staff his Cabinet, a threat he renewed last week.
In the fall, Newsweek reported, “(S)everal lawmakers … expressed support for recess appointments.” Typical was what Sen. Rick Scott, a Florida Republican, posted on X. He said he agrees “100%.”
This is hardly the response James Madison envisioned.
Of course, the crippling unwillingness to defend congressional prerogative has not been limited to the Republican Party. Recall how former Senate Majority Leader Harry Reid (D-Nev.) responded in 2013 when his Republican colleagues filibustered then-President Obama’s judicial nominees. He led the charge to eliminate that longstanding and controversial senatorial practice for nominees to the Federal District Courts and Courts of Appeal.
Since then, members of Congress have even tolerated outright defiance of congressional subpoenas when their party controlled the executive branch.
Today, party loyalty has replaced the kind of branch loyalty James Madison thought would be necessary to make the Constitution work. That is why, as Jeffrey Rosen puts it, “We are living … in a Madisonian nightmare.” Trump’s defiance of Congress and the Constitution is just the latest episode of that nightmare.
Jamell Bouie is right to remind us that, while we can hope that the Supreme Court will stand up for the Constitution, “the sovereign people and their representatives retain the right to say what it means for them and their purposes.”
James Madison would approve.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.
