Skip to content
Search

Latest Stories

Top Stories

A new court should settle disputes between Congress and the president

courthouse
StanRohrer/Getty Images

Coleman was an assistant Missouri attorney general and Republican congressman from 1976 to 1993. Now retired as a lobbyist, he is an advisor to Protect Democracy, an anti-authoritarian watchdog group.


One of American democracy's bedrock precepts is that no one, not even the president of the United States, is above the law. The principle was confirmed this month by the D.C. Circuit Court of Appeals, when it reversed a lower federal court's ruling and said Congress has the authority to go to court to enforce subpoenas of executive branch officials.

Unfortunately, from a practical standpoint, the long and time-consuming road of judicial decision-making may have rendered the matter moot — allowing President Trump to run out the clock beyond the election.

The clock started running a seeming eternity ago, in March 2019, when the House Judiciary Committee began an investigation into alleged misconduct by Trump and his close advisors. The investigation followed up on special counsel Robert Mueller's report on the investigation into Russian interference in the last presidential election.

During the investigation, Mueller interviewed Donald McGahn, who was then serving as White House counsel. The Mueller report concluded that impeachment was the mechanism to address whether Trump impermissibly coordinated with the Russian government in connection with the election or obstructed justice in the course of the special counsel's investigation.

Sign up for The Fulcrum newsletter

When McGahn refused the Judiciary Committee's invitation to testify, the panel issued a subpoena in April ordering McGahn to appear one month later, to testify and produce documents. Trump directed McGahn not to appear, claiming presidential advisors were "absolutely immune from compelled congressional testimony." After all attempts to negotiate McGahn's appearance failed, the House filed a lawsuit in federal court last August to enforce its subpoena.

Here's how the litigation proceeded, in four steps:

The District Court rejected McGahn's claim, directing him to appear before the committee. Then McGahn appealed that decision to the D.C. Circuit, where a divided three-judge panel found that he did not have to testify.

At that point, the appeals court granted the Judiciary Committee's petition to have all the judges on the court review the case. Then the full D.C. Circuit heard oral arguments and ruled 7-2 that the legislative branch has the legal standing to try to use the judicial branch to force the executive bench to comply with subpoenas.

That's where things stand now: Seventeen months after the initial request for testimony — six of those months after Trump was acquitted at the Senate trial that resulted from articles of impeachment drafted in the House Judiciary Committee — one more step of litigation, an appeal to the Supreme Court, is still possible.

The McGahn case is just the freshest illustration of how time consuming interbranch litigation can be, often resulting in a final resolution many months or even years after the dispute started — with the political and governing process continuing all the while. Any wrongdoing by a president and his aides is allowed to continue unabated. A Congress lasts only two years, making it likely this one will conclude in early January before the House can obtain judicial enforcement of its subpoena.

Trump's categorical direction to members of his administration — that no member of the executive branch shall cooperate with the impeachment investigation — not only assured litigation, but more importantly was also an effective stalling tactic.

The flagrant abuse of a constitutionally prescribed process must be addressed by Congress to assure that, in future litigation between the branches, the judicial system will not allow another bedrock principle of American democracy to become lost in the process: Justice Delayed is Justice Denied.

It is wrong to require Congress to repeatedly undertake a patently flawed judicial process to assure our constitutional checks and balances are not rendered obsolete. The current system produces a no-win situation for the rule of law. That's why Congress should pass legislation creating a new type of federal court — one with exclusive jurisdiction over, and focused solely on, disputes between the federal government's branches.

This special court is especially needed to handle future instances of Congress pursuing an impeachment.

The legislation should expedite the litigation process in such cases, allowing direct appeal of the court's ruling to the Supreme Court, and set special rules of procedure. It should also give consideration to spelling out when it's appropriate for the new court to abandon the general rule that so-called "political questions" are beyond the purview of the federal courts.

Failure to adopt meaningful changes in this process will only invite more non-compliance by a president faced with lawful inquiries by Congress. To condone an administration's wrongdoing is to encourage more of it and to give up on the rule of law and our democracy.

Read More

U.S. President Donald Trump holds up a signed executive order as (L-R) U.S. Treasury Secretary Scott Bessent, Secretary of Commerce Howard Lutnick and Interior Secretary Doug Burgum look on in the Oval Office of the White House on April 09, 2025 in Washington, DC.

U.S. President Donald Trump holds up a signed executive order as (L-R) U.S. Treasury Secretary Scott Bessent, Secretary of Commerce Howard Lutnick and Interior Secretary Doug Burgum look on in the Oval Office of the White House on April 09, 2025 in Washington, DC.

Getty Images, Anna Moneymaker

President Trump Invokes Emergency Powers for New Tariffs

In his April 2 executive order on tariffs and previous orders announcing tariffs on Chinese, Canadian, and Mexican imports, President Trump used the National Emergencies Act of 1976 (NEA) and the International Emergency Economic Powers Act (IEEPA) of 1977.

This raises two important questions: Do the National Emergencies Act and IEEPA allow the President to set tariffs, and is the current economic state actually an emergency? (We also covered some tariff history on our full post here, and here on the projected impact, Trump's rationale, and Congress's response.)

Keep ReadingShow less
Innovative Local Solutions Can Ease America’s Housing Crisis
aerial photography of rural
Photo by Breno Assis on Unsplash

Innovative Local Solutions Can Ease America’s Housing Crisis

Across the country, families are prevented from accessing safe, stable, affordable housing—not by accident, but by design. Decades of exclusionary zoning, racial discrimination, and disinvestment have created a housing system that works well for the wealthy but leaves others behind. Even as federal cuts to public housing programs continue nationwide, powerful, community-rooted efforts are pushing back and offering real, equity-driven solutions led by local voices.

Historically, states like New Jersey show what’s possible when legal advocacy and grassroots organizing come together. In 1975, the New Jersey Supreme Court’s Mount Laurel ruling established that every municipality in the state has a constitutional obligation to provide its fair share of affordable housing. This landmark legal ruling reshaped housing policy and set a national precedent. Today, organizations like Fair Share Housing Center continue to defend and expand this right, ensuring that local governments are prohibited from using zoning laws to exclude working-class families or people of color.

Keep ReadingShow less
Trump Welcomes Salvadoran President, Continuing To Collaborate With Far-Right World Leaders

WASHINGTON, DC - APRIL 14: U.S. President Donald Trump meets with President Nayib Bukele of El Salvador in the Oval Office of the White House April 14, 2025 in Washington, DC.

(Photo by Win McNamee/Getty Images)

Trump Welcomes Salvadoran President, Continuing To Collaborate With Far-Right World Leaders

WASHINGTON D.C. - President Donald Trump on Monday said that he would try to deport “as many as possible” immigrants or criminals to El Salvador. Salvadoran President Nayib Bukele met with Trump at the White House to discuss the ongoing deportations of MS-13 and Tren de Aragua gang members to El Salvador’s notorious Center for Terrorism Confinement (CETOC).

Trump has now deported 238 individuals to El Salvador under the 1879 Alien Enemies Act without notice or due process of law. President Bukele has agreed to help Trump with his deportation goals and received $6 million from the White House to continue these efforts.

Keep ReadingShow less
Quiet Death of Dissent
woman in black hijab holding white and black printed board
Photo by Justin Essah on Unsplash

Quiet Death of Dissent

There is something particularly American about the way we're dismantling our democracy these days – we are doing it with paperwork. While the world watches our grand political theater, immigration agents are quietly canceling visas, filling out deportation orders, and reshaping the boundaries of acceptable speech without firing a single shot.

I think about Mahmoud Khalil, a Palestinian activist and Columbia graduate who committed no crime beyond speaking his mind. I think about Rumeysa Ozturk, a doctoral student at Tufts whose academic career hangs by a thread. I think about the estimated 300 international students whose visas are under review or already revoked for daring to participate in First Amendment exercises on campus across the United States. These stories are not just about immigration status but about who is American enough to participate in its democracy and under what conditions.

Keep ReadingShow less