The unprecedented power grab by President Trump, in many cases, usurping the clear and Constitutional authority of the U.S. Congress, appears to leave our legislative branch helpless against executive branch encroachment. In fact, the opposite is true. Congress has ample authority to reassert its role in our democracy, and there is a precedent.
During the particularly notable episode of executive branch corruption during the Nixon years, Congress responded with a robust series of reforms. Campaign finance laws were dramatically overhauled and strengthened. Nixon’s overreach on congressionally authorized spending was corrected with the passage of the Impoundment Act. And egregious excesses by the military and intelligence community were blunted by the War Powers Act and the bipartisan investigation by Senator Frank Church (D-Idaho).
It seems perfectly possible that, once Trump leaves the White House, Congress could reassert its authority under Article I of the Constitution, as it has done before. What are the logical reforms that could be proposed better to correct the imbalance in our checks and balances system?
Problem: Executive branch ignoring federal law -- passed by Congress and signed by the President -- to spend appropriated funds.
Solution: Remove OMB's discretion to apportion federal funding and direct agencies to spend funds as directed by Congress. The Antideficiency Act, originally passed in 1880, prohibits federal employees from “making or authorizing an expenditure or any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law,” according to the General Accountability Office. Penalties include removal from office, fines, and even jail sentences. Why not add a provision that imposes penalties for NOT spending federal dollars? The threat of prosecution is a remarkable incentive to obey the law and may be helpful here.
Problem: The President declaring emergencies to act in an unconstitutional manner, such as levying tariffs.
Solution: Pass a law clarifying how and when a President can declare an emergency. Thankfully, there is already bipartisan legislation to do just that. “The Article One Act,” led the House by Chip Roy (R-TX), (yes – Mr. MAGA himself), and Steve Cohen (D-TN), and by Mike Lee (R-UT) and Richard Blumenthal (D-CT) in the Senate, would address this issue by terminating a presidential declaration of a national emergency after 30 days unless Congress passes a joint resolution approving the declaration. The Supreme Court may eventually rule against Trump on the tariff question, since the Constitutional language regarding Congress’s primacy role for tariffs and revenue is crystal clear. Yet more protection is clearly needed.
Problem: President Trump is firing federal agencies' inspectors general (IG), who are supposed to be free of political interference.
Solution: Strengthen the laws to provide additional protections to IG’s. The roughly 80 federal inspectors general are watchdogs established by Congress and embedded in federal agencies to root out waste, fraud, and abuse. Among other things, they take in whistleblower complaints and ferret out illegal activity. The Federal Vacancies Act should be updated, per a recommendation from the Project on Government Oversight, to vest the Council of the Inspectors General on Integrity and Efficiency (CIGIE) with the power to make temporary appointments. As a backup in case a court strikes down that process, Congress should allow designated federal judges to appoint acting IGs from a list of candidates maintained by CIGIE. This mirrors the model for appointing temporary U.S. attorneys. This would ensure their qualifications and independence.
Problem: President Trump is eviscerating the Advice and Consent clause of the Constitution regarding the appointment of U.S. Attorneys, allowing him and his cronies to avoid U.S. Senate oversight and confirmation.
Solution: Change laws regarding the appointment of Acting U.S. Attorneys. Multiple cases are winding their way through the court system, with some courts invalidating these appointments in full. And the judicial branch may eventually correct this violation of the spirit of the Constitution. However, the chaos and delay are leaving our judicial system in tatters. Congress can clarify the role of Acting U.S. Attorneys, even directing rank-and-file career prosecutors to fill that role until the Senate confirms a replacement.
Problem: The federal courts are abetting Trump's power grab by creating new protections for the president, such as immunity from prosecution, and by dramatically expanding presidential hiring and removal authorities by asserting the unitary executive theory.
Solution: The Senate should strive to increase the percentage of nominees to the federal courts who have legislative branch experience and should dramatically limit the number of appointees who have worked in the Justice Department. This would ensure that federal judges are more respectful of Congress's prerogatives and less likely to embrace maximalist executive-branch legal theories.
There will likely be many who read these ideas and consider their contemplation a wasteful exercise. Congress has both neutered itself and allowed the executive branch to invade its jurisdiction to such a degree that an assertive legislative branch is unthinkable. However, at other times in American history, similar imbalances have occurred between the branches of government. And the American democratic pendulum always seems to swing back to restore sensible equilibrium. One thing is for certain: if we don’t at least discuss and debate a restoration of Congressional authority, nothing will happen.
Bradford Fitch is the former CEO of the Congressional Management Foundation and author of “Citizens’ Handbook for Influencing Elected Officials.” Daniel Schuman is the Executive Director of the American Governance Institute.
