How to Save Congress From the Supreme Court

Much of what ails us can be blamed on the steady degradation of the legislature as the other branches of government grabbed power for themselves. It’s time to start undoing the damage.

Seven years ago last month, President Donald Trump remarked that he had “an Article II where I have the right to do whatever I want as president.” This statement was widely mocked during his first term, but it appears now to be generally true as a matter of practice. The second Trump administration has broken numerous federal laws, ransacked the Treasury, threatened the states, and even defied the courts from time to time.

The Supreme Court, with rare exceptions, has encouraged this behavior. Its current conservative majority has gone to great lengths to expand presidential power while simultaneously weakening Congress. It has operated from a deeply flawed understanding of the separation of powers—one that, despite the majority’s originalist pretenses, would be alien to the Framers in 1789. In doing so, the court has also greatly strengthened itself.

Congress has been the primary victim in this two-branch conspiracy. But the real injury is to the American people themselves. Hyper-presidentialism has robbed the American people of their natural way to govern themselves. It has transformed a two-and-a-half-century-old constitutional order into a semi-Bonapartist regime, where a national executive’s election is treated as a referendum on the national soul, subject only to review by a guardian council of unelected jurists.

Americans must not conflate the weakness of Congress’s current members with the weakness of Congress as an institution. Trump and the Supreme Court often insist that it is the president who must play the central role in American political life. This is not how the Constitution was designed to work, which is why it increasingly does not seem to work at all. Congressional primacy must be restored, and the cult of the presidency must be defeated.

Perhaps the clearest articulation of this presidentialist vision can be found in Chief Justice John Roberts’s majority opinion in Seila Law v. Consumer Financial Protection Bureau. The 2019 case centered on whether Congress could lawfully structure the CFPB to be overseen by a single director who could only be removed for cause by the president. To answer this question, Roberts laid out an overarching vision of the separation of powers.

Quoting from a variety of sources, the chief justice argued that the Framers “split the atom of sovereignty itself into one federal government and the states” to prevent “abuse[s] of power” and preserve “liberty,” thereby creating our federal system. From there, “they divided the powers of the new federal government into three defined categories, legislative, executive, and judicial,” Roberts explained.

“They did not stop there,” he continued. “Most prominently, the Framers bifurcated the federal legislative power into two chambers: the House of Representatives and the Senate, each composed of multiple members and senators.” The presidency, he claimed, “is a stark departure from this tradition,” with a unity of vision that reflects the Framers’ own supposed preferences.

The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” See The Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id., No. 70, at 475–478. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.”

The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” See The Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id., No. 70, at 475–478. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.”

“To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in government,” Roberts concluded. “Only the president (along with the vice president) is elected by the entire nation. And the president’s political accountability is enhanced by the solitary nature of the executive branch, which provides ‘a single object for the jealousy and watchfulness of the people.’”

This creation myth is cohesive but unpersuasive. Contrary to Roberts’ telling, the Framers did not create Congress in a vacuum. There was no “atom” to be split. The Constitution was built upon existing institutions, including a multitude of state legislatures and an effective but ramshackle provisional government. This depiction of events might be tolerable if you must explain the Constitution to children. Its detachment from historical reality makes it poorly suited for a Supreme Court opinion.

Roberts also fundamentally misreads Federalist Number 70. As I’ve noted before, Hamilton wrote it to explain the virtues of a single executive, like our presidency, over a plural executive. In the late 18th century, some states like Pennsylvania vested their executive powers in councils instead of governors. Ancient and medieval republics in Europe also often had plural executives: Rome’s consuls, Carthage’s shofets, Sparta’s ephors, Athens’s archons, and so on.

Hamilton forcefully argued that a single executive would be more efficient and accountable than multiple chief magistrates, who might evade public scrutiny or conspire together to deprive the people of their liberties. Along the way, he noted that “differences of opinion” and the “jarrings of parties,” which he described as unavoidable in legislative bodies, would be ill-fitting for an executive branch. To read Federalist 70’s commentary on plural/single executives as a debate over legislative/executive power is like arguing that “thou shalt not steal” forbids the Bessemer process.

From there, Roberts made a number of additional historical errors. For one thing, the Framers did not make the president democratically accountable as he claimed. The Constitution gives state legislatures the discretion to choose how to appoint electors. Many states opted for some form of popular election, but some legislatures in the early republic simply appointed them. They also set up an electoral college to further distance........

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