The judiciary isn’t supposed to be the primary check on the executive, the legislative branch is.
Whatever you think about American politics and government, whether you are on the right, the left or somewhere in the middle, you should be mad at Congress. I don’t just mean the Republican-controlled Congress — though, by all means, be mad at them — I mean the institution as a whole.
Let’s start with the big picture.
In our constitutional system, Congress is the supreme branch of government. It is not “coequal” to other branches, and any claims to the contrary are Nixonian propaganda. The Nixon White House forced “coequal” into mainstream usage to defend itself from congressional oversight. “Coequal” doesn’t appear in the Constitution. It’s used sparingly in the Federalist Papers, but never to describe the relationship between the three branches of government to each other (save for once, to describe the parity between the House and Senate).
Just look at the powers assigned to Congress. It can fire members of the other branches; the other branches can’t fire anyone in Congress. Congress writes the laws. It has sole authority to raise taxes (hardly a minor issue to the Founding Fathers, tax rebels all), borrow money, regulate commerce, and to raise armies and declare war. Congress creates all the courts and federal agencies not specified in the Constitution. It sets and pays their salaries. It has sole authority to admit states to the union. The other branches have nothing like these powers or authorities.
But over the last century, Congress has taken itself apart like a robot ordered to put itself back in the box, giving its functions to the other branches. It bequeathed much of its regulatory powers to the executive branch and the courts. It gifted most of its war and trade authorities to the president.
Congressional leaders also stripped not just members but committee chairs of meaningful influence in the crafting of legislation, effectively disenfranchising the voters who elect them. Leadership simply declares what Congress will do and expects everyone to fall in line. When the same party controls the White House and Congress, the speaker and Senate majority leader peddle the president’s agenda.
Now, consider the moment we’re in. Across a vast array of fronts, President Donald Trump is certainly testing and arguably exceeding his authority. But because he is popular with Republican voters, congressional Republicans won’t do anything about it. Just in the last week or so, Trump ordered troops into Chicago and Portland against the wishes of the governors of Illinois and Oregon (remember, the Founders did think states were coequal with the federal government). The administration also once again rejected Congress’ power of the purse, declaring its refusal to spend money already allocated by Congress, to punish domestic opponents. Oh, and it unilaterally declared we’re at war with drug cartels — after it had ordered three military strikes on alleged drug-smuggling boats in the Caribbean, killing 17 people.
What has Congress done? Nothing.
Texas National Guard troops were deployed to a U.S. Army Reserve Center near Chicago Tuesday, but a federal judge did step in to temporarily halt the incursion into what Trump calls “war ravaged” Portland. In response, White House deputy chief of staff Stephen Miller accused the judge — a Trump appointee! — of being just another “far left Democrat” guilty of “judicial insurrection” in league with domestic “terrorist networks.”
Now, I think that is ludicrous and dangerous nonsense. But maybe you don’t. Maybe you think Miller’s right. You know who could settle things? I’ll give you a hint: It rhymes with “shmongress.”
The judiciary isn’t supposed to be the primary check on the executive, Congress is. The vacuum created by Congress invites the president to fill it. In response, opponents go straight to the courts to thwart it, pulling the judiciary into political fights for which it’s not suited.
Indeed, if you love everything Trump has done, you should still be mad at Congress because the vast majority of his “achievements” are written in the disappearing ink of executive orders. Congress could make it impossible for judges to overrule his tariffs by making them law. By passing legislation, Congress could also prevent the next Democratic president from rescinding Trump’s orders, the way Trump rescinded Biden’s and Obama’s and Obama rescinded Bush’s.
The Founders certainly believed that courts could weigh in on the constitutionality of legislative and executive action. But they also believed that the Congress could.
Legislators swear an oath to the Constitution, too. Indeed, for much of our history, they would enforce fidelity to the Constitution. Congress would refuse to pass legislation or fund executive action it deemed unconstitutional. And among the things it considered unconstitutional were actions that encroached on its power and authority.
But the supreme branch today is a parliament of pundits, a congress of cowards, far more concerned with partisan point-scoring than honoring their oaths.
Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.
