It is no coincidence that the first article of the U.S. Constitution, the one the Framers prioritized, defines the powers of Congress, not the president. The Framers assumed Congress would play the leading role under the new constitution, as it had through the Continental Congress and the Confederation Congress.
As Americans have witnessed since Jan. 20, the Framers assumed wrongly. And it is time to reassess what is best for the nation — the Framers’ vision or the powers claimed by President Trump.
In the 20th century and early in the 21st century, Congress ceded more power to the presidency in areas such as budget creation, diplomacy, war powers and law enforcement. Popular support accompanied those changes, particularly during the 1930s, the 1960s and the early 2000s as Americans demanded presidents “get things done.” The first 100 days standard gained popular currency, which forced presidents to act quickly. Additionally, media coverage centered on the person of the president rather than the Congress. The latter appeared as an amorphous blob. No one could speak for the whole Congress.
Disturbed by the excesses of the Lyndon Johnson and Richard Nixon administrations, Congress attempted to claw back some of its power through the War Powers Act, the Congressional Budget Act and the Impoundment Act. It also enacted the legislative veto that allowed Congress to override presidential actions, sometimes by doing nothing.
But presidential power began to grow, particularly as divided government became more common. Presidents began to rely on executive orders to enact policy that formerly had been Congress’ purview in areas such as gun control.
Trump has taken presidential powers to another level entirely. He issued 26 executive orders on his first day. In his first hundred days, he signed 142. Plus, their scope is well beyond those of other presidents. They include gutting whole departments, cutting programs such as public television and public radio, ending DEI programs, authorizing massive immigrant deportation orders, and targeting individuals and corporations he felt harmed him. He has declared these orders are essential due to various national emergencies.
The Framers established three branches of government to separate power, but also to check power held by each branch. Presidential power is now out of balance in relation to the other two branches. The trend has been going in that direction for many years, but now, with a president who is anxious to use such power, the effects of that imbalance are glaringly apparent.
Some federal judges have checked presidential power by ruling that Trump’s actions are unconstitutional or violate statutes. But the Trump administration is counting on the Supreme Court to back them up in most if not all the actions. However, the court may or may not do so, as indicated by its decision in the Kilmar Abrego Garcia case directing the administration to facilitate his return.
The question of whether to abide by the Supreme Court’s decisions has rarely been a live one. But today it is, making many Americans wonder whether the judiciary will be an effective check on a rapacious president.
Congress could and should check the president. Some members of Congress are working on legislation to do so. Others should join. But it cannot be partisan. One such recent example of a partisan effort was the Federalist Society’s Article I Project, which targeted checking Democratic presidents but has been silent about Republican ones.
Members of both parties need to come together to enact legislation that limits presidential powers regardless of who is president. The legislation should not be targeted at particular policies but at reining in presidential power generally to dictate economic policy, punish opponents or ignore congressional appropriations. Congressional Republicans would benefit since Congress would be checking a Democrat in the future and not just a Republican today.
Members of Congress swore to uphold the Constitution. Preserving constitutional checks and balances to maintain our democratic system is a large part of that obligation. It is time for Congress to restore the balance in the Constitution the Framers so carefully crafted for our benefit.
Richard Davis is a professor emeritus of political science at BYU.
