Noah Feldman: Congress is surrendering its last real power

This hasn’t been a good year for congressional authority. Consider Congress’ craven vote to claw back some $9 billion of funding it had previously allocated for foreign aid and public broadcasting. That quiet move tells you a lot about how institutional power works in Washington — especially given some of the bigger headlines of the last seven months.

First, President Donald Trump took unilateral steps to shutter government departments like the U.S. Agency for International Development and the Department of Education, entities created by Congress to perform important government functions. Then the Supreme Court effectively blessed Trump’s actions, which lower courts had treated as unconstitutional and unlawful executive usurpations of legislative authority. Now, the rescission vote — a response to the demands of the Trump administration, which had made clear it wasn’t going to spend those funds no matter what — looks like a white flag of surrender.

Together, these three developments — Trump’s executive attack on legislative powers, the judiciary’s ratification of the assault and Congress’s own willingness to submit — herald what could be a decisive moment in U.S. constitutional history.

It is well-known that the three branches of government are not the same as they were at the founding. Each has evolved and changed, both individually and in relation to the other two. The executive, originally tiny and without substantial means of accomplishing policy objectives, has grown into what the historian Arthur Schlesinger in 1973 called the imperial presidency. The judiciary, described by Alexander Hamilton as “the least dangerous branch,” assumed the power of judicial review in the 1803 case of Marbury v. Madison, although that power was not explicitly granted by the text of the Constitution. Beginning in the early 20th century, the justices have deployed that power to strike down state and federal legislation they don’t like, while simultaneously occupying a kind of supervisory role over the rest of the constitutional system.

Congress, designed by the framers to be the “first among equals” branch of government, has followed a more circuitous path, especially when it comes to domestic politics. The creation of the modern administrative state took place via legislation. True, Congress put extensive regulatory power into agencies that are part of the executive branch, strengthening the presidency. Yet at the same time, by setting the direction for regulation that went far beyond what Congress itself could’ve hoped to accomplish, the legislative branch arguably extended its power through the administrative state.

Independent agencies, whose leaders are insulated from being fired by the president except for cause, are also fairly understood as serving congressional interests. In the not-too-distant past, Congress exercised substantial influence over administrative agencies through oversight hearings and fairly constant communication with agency heads. (Here, too, Trump and the Supreme Court seem poised to change the century-old status quo so that the only independent agency that remains may be the Federal Reserve — and the Fed’s indepedence is hardly assured.)

The realms of war and foreign affairs are a different story. Here, Congress has lost much of its original role. The legislature’s power to declare war is now routinely circumvented by presidents who claim an inherent executive authority to defend the country however they choose, including by bombing countries without legislative authorization. The Senate’s power to approve or disapprove treaties has been reduced almost to insignificance by the rise of executive agreements with other countries that don’t require the Senate’s participation.

What has remained for Congress — until now, at least — has been the power of the purse. Because Congress decides what money to spend and what to spend it on, Congress has retained the capacity to influence the direction of executive branch priorities. This power survived even the first Trump administration. Remember when Trump wanted to build a border wall with Mexico using funds Congress hadn’t appropriated for that purpose? That plan came to grief because, well, the president isn’t supposed to be able to spend without congressional approval.

Over the last six months, that’s changed. It now looks like we may be entering a new historical era in the decline of congressional power. It started with DOGE — the so-called Department of Government Efficiency. The legal debate over the DOGE cuts was whether the executive branch could fire government employees whose jobs are provided for by congressional appropriation, and whether whole agencies can be shuttered purely on presidential say-so. This kind of priority-setting is at the core of the constitutional and historical structure of congressional authority. The basic legal reason so many lower courts issued orders blocking the DOGE firings and closings was that the president was acting not only without the authority of Congress, but against Congress’s expressed policies as identified by congressional appropriation.

The Supreme Court’s reversal of these lower court orders has come almost entirely without comment or explanation from the conservative majority. The liberal dissenters, however, have named the stakes very clearly: the separation of powers. This is James Madison’s concept, taught to generations as basic civics, that says each branch of government is designed to check and balance the others.

Instead of upholding that principle, the conservative majority has embraced the ideology of the “unitary executive” — a once-fringe, now dominant conservative theory that insists the president must have total control over the whole executive branch. For nearly half a century, some conservative legal scholars have been arguing that the president should be able to fire anyone in the executive branch for any reason he wants. Trump, the man who got famous on the phrase “You’re fired,” came along at the right moment to take advantage of this jurisprudential trend.

Although they haven’t openly said so, it seems probable that the high court’s conservative justices believe that a president who can fire anyone he wants — even agency heads protected by Congress from being fired without good cause — can similarly decide to close departments, even departments created and funded by Congress.

The combination of Trump’s aggressive expansion of executive power and the Supreme Court’s acquiescence would be enough on its own to count as historically significant. But it’s Congress’s own apparent lack of interest in defending itself that tips the scales in favor of real historical change. The rescission bill amounts to a tacit recognition that if the president doesn’t want to spend money allocated, Congress has no reason to insist that he do so.

A Republican Congress in thrall to or in fear of Trump may not intend to create a lasting precedent in which the spending power, Congress’s last redoubt of priority-setting authority, fades away. They may just want to give the president what he wants.

Yet the examples of war powers and foreign affairs show that, once Congress has allowed the executive greater latitude, executive power snowballs. Democratic and Republican presidents alike have expanded executive authority over military action and foreign policy. The imperial presidency is a bipartisan affair.

There is no reason why a Democratic president with a Democratic Congress would not want to exercise the same degree of influence over spending priorities as a Republican president. A president who can shut down parts of the government can shut down the parts that pursue policies he doesn’t like. And he can try to argue, as a next step, that funds freed up can be spent on different projects and priorities. Both Democratic and Republican presidents would love to be able to control what the government spends taxpayers’ money on. And although Republicans have historically wanted to spend less, that is not invariably the case. Democrats have occasionally been the party of fiscal discipline, and Trump Republicans are happy to spend even as they lower taxes.

One is tempted to conclude by saying that it is not too late. If Democrats gain control of the House in the midterms, they could at least try to exert some modest oversight authority. The painful truth, however, is that Trump’s actions are now extremely unlikely to be reversed, essentially ending the debate over how much Congress’s expressed spending priorities matter.

And it’s not just the rescission package. The same logic could cover Trump’s use of tariffs, a form of taxation that the Constitution formally gives to Congress but that Congress has delegated to some degree to the executive. The courts still must decide whether Trump’s levies are within his constitutional authority. (My best guess is that ultimately, the current Supreme Court will not block Trump from exercising his signature foreign policy tool.)

Then there’s the declining popularity and legitimacy of Congress as an institution. That decline has something to do with polarization, the rise of social media, and the hollowing out of political parties as means for direct connection to one’s representatives. Professionally gerrymandered districts have also made close House races rarer, which further disinclines voters to care, or to take Congress seriously.

Ultimately, it will take a decade or more to know if this moment of congressional eclipse is genuinely irreversible. It may be that, as some have argued, Congress will simply become more beholden to the party of the president, the way a parliamentary government usually is. But because parliamentary leaders are chosen by the party, not the general public, and are subject to votes of no confidence, the effect is likely to be the decline of congressional power at the expense of the presidency.

But if it is, historians are likely to determine that the first half of 2025 played a meaningful part in Congress’ slow decline.

____

This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."