Restoring Balance to our Constitutional System
A running list of reforms.
The Trump presidency has exposed us to a model of governance that runs counter to the intention of the Founding Fathers – one in which the executive branch utterly dominates the national government as well as the American states.1
Such has been the vision of the White House, anyway. In truth, Trump has faced significant resistance from a variety of sources, including activists, the public at large, federal courts (including, yes, the Supreme Court), and multiple states. Even the Republican-led Congress has shown occasional efforts to exercise its Article I powers, though rarely to the degree envisioned by the Founders.
Should the current president ultimately retreat from his vision of “American Caesarism” or a strongman presidency, he has nonetheless exposed major legal and constitutional loopholes in our regime that could easily be exploited by future authoritarian-minded presidents of either party.
Fortunately, a wide range of scholars, legal experts, politicians, and political activists have been suggesting ways that Congress could plug those loopholes and restore balance to our system of government. I have started keeping track of these reforms on these lists, which I will update periodically.2
In general, they fall into four categories:
Taking powers away from the president. These are generally direct responses to the statutory and constitutional loopholes that Trump and other recent presidents have exploited.
Giving Congress more powers. For the most part, these are moves by Congress to give itself powers that currently reside with the executive and/or that could help it better resist presidential overreach.
Strengthening the capacity of Congress to function. The purpose of these reforms is to help Congress operate better, in part so it can better withstand resistance from and encroachments by other branches.
Altering the federal judiciary’s power, membership, and/or interpretation of the Constitution. Proposals in this category are responses to recent federal court decisions (mostly from the Supreme Court) that have, among other things, empowered the executive branch well beyond the vision of the Founders.
Some important caveats to the lists:
Some of these reforms have been suggested by a lot of people over many years.3 By no means should the list be considered a comprehensive summary of all the authors of each possible reform.
I have limited my focus to new statutes, new congressional rules, and political moves by Congress that are intended to limit presidential (and judicial) power and expand congressional authority and capacity. Changes to our electoral system, to the bureaucracy, or to other facets of American politics are excluded, as important as they may be, as are reforms related to executive branch corruption.
I make no judgement about the effectiveness of these proposals. Some are controversial and have their detractors. A number of them may not work at all or, worse, have unforeseen consequences that actually harm our constitutional republic.
Above all, I do not expect that implementing any of them will be easy. Over many decades, presidents and the federal courts have accrued formal and informal influence while Congress has atrophied.4 It will likely take decades more to change this direction of institutional development.
The political will to adopt limits to presidential power in particular will depend largely on the sentiment of voters and politicians, many of whom have come to believe that the executive branch is the only true representative of the entire nation, and that therefore the president should seldom be constrained. One cannot expect future presidents to disagree with that claim and allow their own powers to be curtailed.
But as difficult as change may be, it is not impossible. As Professor William Howell wrote in his (increasingly relevant) book about unilateral presidential power, Power without Persuasion, “the limits of unilateral powers are as wide or narrow as Congress and the courts permit” (p. 23). And multiple bills have been introduced in recent years to implement one or more of the reforms that limit the executive branch.5
If nothing else, these lists are a reminder that there are many scholars and thought leaders from both political parties who are concerned about the future of the American republic and have carefully considered ways to change the status quo in order to protect the balance of powers.
See for example Federalist Paper 45, 47, and 48. Even in Federalist Paper 70, which famously advocates for a “vigorous Executive,” Alexander Hamilton acknowledges the need for “safety in a republican sense” from an abusive president.
Political scientist Steve Smith recently wrote a blog post that also lists a number of possible reforms, a post that I strongly recommend reading.
See for example the excellent 2020 edited volume Congress Overwhelmed which discusses ways Congress can improve its internal capacity.
There is a wealth of literature on this subject. Among others, I recommend Louis Fisher’s Constitutional Conflicts between Congress and the President and Andrew Rudalevige’s The New Imperial Presidency.
These include the National Security Powers Act, the Congressional Power of the Purse Act, the Investigative Integrity Protection Act, and the Protecting Our Democracy Act.