Congress’ power has been diminishing for years, leaving Trump to act with impunity

A year into US President Donald Trump’s second term, his record use of executive orders^[1], impoundment of government spending^[2], and military interventions in Venezuela^[3] and Iran^[4] have sparked criticisms from Democrats^[5] and even some Republicans^[6]. They say he is unconstitutionally sidelining Congress.

As Trump increasingly wields his power unilaterally, some have wondered what the point of Congress is now. Isn’t it supposed to act as a check on the president?

But the power of the modern presidency had already been growing for decades. Successive presidents from both parties have taken advantage of constitutional vagaries to increase the power of the executive branch. It’s a long-running institutional battle that has underwritten US political history.

The years-long erosion of Congress’ influence leaves the president with largely unchecked power. We’re now seeing the consequences.

A fraught relationship

Congress is made up of the House of Representatives and the Senate. Under the US Constitution, it’s the branch of the government tasked with making laws. It’s supposed to act as a check on the president and the courts.

It can pass legislation, raise taxes, control government spending, review and approve presidential nominees, advise and consent on treaties, conduct investigations, declare war, impeach officials, and even choose the president in a disputed election.

But the Constitution leaves open many questions about where the powers of Congress end and the powers of the president begin.

In a 2019 ruling on Trump’s tax returns, the judge commented^[7]:

disputes between Congress and the President are a recurring plot in our national story. And that is precisely what the Framers intended.

Relative power between the different branches of the US government has changed since independence as constitutional interpretations shifted. This includes whether the president or Congress takes the lead on making laws^[8].

Although Congress holds legislative power, intense negotiations between Congress and the executive branch (led by the president) are now a common feature of US lawmaking. Modern political parties work closely with the president to design and pass new laws.

Redefining the presidency

By contrast, presidents in the 19th and early 20th centuries generally left Congress^[9] to lead policymaking. Party “czars” in Congress dominated the national legislative agenda.

Future president Woodrow Wilson noted^[10] in 1885 that Congress:

has entered more and more into the details of administration, until it has virtually taken into its own hands all the substantial powers of government.

Wilson and Franklin Roosevelt after him would later help to redefine the president^[11] not only as the head of the executive branch, but as head of their party and of the government.

In the 1970s, in the wake of the Watergate scandal and secret bombing of Cambodia, Congress sought to expand its oversight^[12] over what commentators suggested was becoming an “imperial presidency^[13]”.

This included the passage of the 1973 War Powers Resolution^[14], designed to wrest back Congressional control of unauthorised military deployments.

Nevertheless, the Clinton, George W. Bush and Obama administrations all argued that Congressional authorisation was not required for operations in Kosovo^[15], Iraq^[16] and Libya^[17] (though Bush still sought authorisation to secure public support).

In turn, the Trump administration argued^[18] its actions in Venezuela were a law-enforcement operation, to which the resolution does not apply.

Why presidents bypass Congress

Historically, presidents have sought to bypass Congress for reasons of personality or politics. Controversial decisions that would struggle to pass through Congress are often made using executive orders.

Obama’s 2011 “We Can’t Wait^[19]” initiative used executive orders to enact policy priorities without needing to go through a gridlocked Congress. One such policy was the 2012 creation of the DACA program^[20] for undocumented immigrants.

Franklin Roosevelt’s use of executive orders dwarfed that of his predecessors^[21]. He issued eight times as many orders in his 12-year tenure than were signed in the first 100 years of the United States’ existence.