Article I of our Constitution creates the legislative branch and entrusts it with powers critical to our government’s operation. It grants Congress the power to make laws, declare war, control the purse, and remove executive and judicial branch members through impeachment and trial in the Senate. The Founders intentionally assigned these powers to the legislature rather than the President. Having fought a war against monarchical rule, they feared concentrated executive power. In Federalist No. 51, James Madison warned that the accumulation of legislative, executive, and judicial powers in the same hands “may justly be pronounced the very definition of tyranny.” Article I comes first in the Constitution because the Founders wanted Congress — the branch most accountable to the people — to wield the greatest power.
And yet, it would be difficult for any modern-day observer of the American political system to conclude that Congress is our government’s dominant branch. Congress accomplishes very little and has a dismal approval rating of 29%. Continuing to consolidate executive power, President Trump and his executive agencies have governed energetically: issuing sweeping executive orders on immigration, setting national AI policy frameworks, enacting and rescinding administrative regulations, and shaping foreign policy through executive agreements instead of Congressionally ratified treaties. But an unchecked executive does not accord with the constitutional order our forefathers envisioned when they laid this nation’s groundwork. The pendulum of power has swung too far towards the executive branch. We must restore balance to our constitutional system.
Before discussing what actions the country should take to effect this restoration, it is worth reviewing how the President has become so powerful. Congress vested greater authority in the executive branch during the twentieth century. President Wilson famously called on Congress to delegate him more power, so that he could effectively respond to the First World War. Subsequent crises — the Great Depression, World War II, the Cold War, the Gulf War, and the aftermath of 9/11 — made a stronger executive authority seem not only prudent but necessary. During moments of existential danger, a single executive acts faster and more efficiently than a deliberative legislature. Even so, a problem lies in the fact that Congress delegated to the President extraordinary powers without clearly defining limits or expiration dates.
Consider the 2001 Authorization for Use of Military Force (AUMF) that passed after the September 11 attacks. Congress authorized President George W. Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Yet presidents have used that statute to justify military operations in Afghanistan, drone strikes in Yemen, operations in Somalia, and actions against ISIS (a group that did not exist in 2001). A well-intentioned authorization of force against certain entities became a global, multi-decade counterterrorism mandate.
One also sees this dynamic play out in trade policy. Under Section 232 of the Trade Expansion Act of 1962, Congress gave the President authority to impose tariffs whenever imports threaten national security — a provision originally meant to address wartime supply concerns. Decades later, in 2018, President Trump imposed tariffs on steel and aluminum imports from close allies under this same authority (an authority different from the authority grounding the recent tariffs the Supreme Court recently struck down). The definition of “national security” has expanded far beyond its Cold War original meaning.
Intentionally or not, Congress has effectively given the President unbounded authority through these statutes. Modern Presidents increasingly exploit their statutory authorities to the fullest extent.
The Supreme Court has been the only body preventing the Presidency from overstepping its proper bounds. Although the Supreme Court has recognized certain presidential privileges — particularly in the area of executive immunity — its broader trajectory has not been to empower the executive. In recent years, the Supreme Court has issued decisions that significantly limit executive agency authority. In West Virginia v. EPA (2022), the Court crystallized the Major Questions Doctrine, holding that courts should not assume Congress delegated authority over issues of major economic or political significance unless Congress clearly stated the intent to do so. In Loper Bright Enterprises v. Raimondo (2024), the Court overturned the Chevron doctrine (1984), ending automatic judicial deference to agencies’ interpretations of ambiguous statutes. Courts must now independently interpret statutory meaning.
Most recently, on February 20th, the Court curtailed the President’s broad use of tariff authority, striking down global tariffs imposed under emergency powers. The Court’s decision appeals to the Major Questions Doctrine – Congress did not give clear authorization to the President to impose these tariffs. As Chief Justice Roberts writes in his opinion, “The Court has long expressed ‘reluctan[ce] to read into ambiguous statutory text’ extraordinary delegations of Congress’s powers.”
Although the Supreme Court has taken serious steps to limit executive overreach, it alone should not bear the burden of policing executive overreach. Courts should not constantly have to referee disagreements between Congress and the President. The more high-profile cases involve presidential authority, the more critics will accuse the Court of acting politically. This perception risks undermining judicial legitimacy, a dangerous development in its own right. The Courts must remain non-partisan both in perception and reality to ensure that we preserve a healthy nation. It therefore seems that the legislative branch must clean up the mess it created. Congress itself must reclaim power.
In theory, this should not be difficult. Congress could attach sunset clauses to broad delegations of authority, forcing the legislature to reconsider these delegations after a specified period of time. It could replace statutes like the 2001 AUMF with narrower authorizations of power. It could more precisely define terms like “national security” in trade statutes. It could reclaim tariff authority entirely. Congress can accomplish these objectives through legislation. Why, then, does Congress not act?
First, delegating authority to the executive branch shields Congressional members from political accountability. When the President makes difficult or controversial decisions — like imposing tariffs or conducting military strikes — members of Congress can criticize these actions without having to vote on them.
Second, party dynamics discourage internal resistance. In our current political environment, a president effectively becomes his party’s leader when he enters office. Congressional members of the same party cannot challenge presidential authority without risking primary challenges and political isolation. The cost of dissent is high.
Finally, hyperpartisanship and Senate procedure make action difficult. The Senate’s cloture rule requires 60 votes to end debate on most legislation. Because we live in an era where neither party consistently controls 60 seats and compromise is rare, major statutory reform has become exceedingly difficult. Our legislature has been paralyzed. And when Congress fails to act, the executive fills the vacuum.
Though these obstacles are significant, they are not impossible to overcome. Political alignments shift. Former Chief Counsel to Senator Mitch McConnell Michael Fragoso argued in the Wall Street Journal that the wave of hyperpartisanship may pass sooner rather than later: “With a GOP increasingly split between populists and conservatives, and a Democratic Party that includes both Zohran Mamdani and his affluent-class targets, bipartisan cooperation may not be as far off as it seems.”
If Mr. Fragoso is correct, we may potentially see a major shift in Congress. An internally divided party is less likely to be staunchly loyal to a single leader, i.e. the President. When ideological factions emerge within a party, the President’s ability to command unified congressional obedience weakens. As a result, lawmakers gain more leeway to defend Congress’s prerogatives without facing accusations of disloyalty. Dissent within a political party makes individual dissent less costly.
Moreover, greater ideological diversity within each party could make it easier for the Senate to achieve the 60-vote barrier that presently hinders reform. If voting blocs coalesce around specific shared interests rather than strict party identity, reclaiming war powers or narrowing emergency authorities becomes much less implausible. The cloture rule only paralyzes Congress when party lines are rigid.
So, it seems that internal division within our parties might start a trend of bipartisanship within Congress, which could enable Congress to legislate more effectively. But crucially, we, the citizens of the United States, possess the power to make a wave of bipartisanship endure. Earlier, I argued that members risk isolation or primary challenges whenever they challenge a President belonging to their own party. That risk is real, but it exists because of how voters respond to perceived party disloyalty. Political incentives are not fixed; they are shaped by the actions constituents reward and the actions they punish.
Ultimately, if voters continue to reward Congressional inaction with reelection and treat all bipartisan cooperation as betrayal, we should not be surprised if the executive branch continues to consolidate power. But if we demand that our representatives legislate and accept the political risks that accompany responsible governance, Article I may once again stand for what the Founders intended.
Image Credit: “The U.S. Capitol at Night” (1902), Colin Campbell Cooper – Wikimedia Commons
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