JULY 4, 2025
The Supreme Court last week sharply curtailed the ability of federal judges to block a presidential action nationwide, even if they find it unconstitutional. That followed its decision last year granting the president broad immunity from prosecution for crimes committed in the course of his core duties.
The Senate several days ago rejected a resolution that would have let Congress decide, under its war powers, if President Donald Trump can strike Iran again. And Congress in recent months has repeatedly declined to assert its constitutional authority over spending or tariffs.
In a striking dynamic of the Trump era, analysts say, the judicial and legislative branches have been steadily transferring many of their powers to the executive — or at least acquiescing in the transfers. That has shaken up a system that depends on the three branches jostling sharply as each jealously guards its own prerogatives, many critics contend.
“When the constitutional framers designed a system of checks and balances, they didn’t mean a system where Congress and the Supreme Court give the president a blank check,” said Sen. Chris Van Hollen (D-Maryland). “That’s not the kind of check they had in mind. … It was intended to create friction among the three branches to produce balance.”
But the country has become so divided, some scholars say, that leaders of the three branches are often more loyal to their parties than to their institutions.
“I think the framers envisioned a structure where it would take two branches to do anything major — go to war, pass a law, enforce a law,” said Erwin Chemerinsky, dean of the law school at the University of California at Berkeley. “We have gone away from that. The executive can do so much without the other two.”
Some conservatives respond that Trump is only doing what other presidents have done — asserting his powers and leaving it to the courts to decide whether he has exceeded his authority. Many lower courts have done just that, blocking his executive orders, only to see the Supreme Court scale back or lift many of those rulings.
“I think everyone is getting all Sturm und Drang and go-to-your-bomb-shelters-quick about it,” said Paul Kamenar, lead counsel at the conservative National Legal and Policy Center. “But overall, I don’t see that Congress or the courts are ceding too much power to the president, because at the end of the day, the Supreme Court will decide that.”
White House officials say the Supreme Court is restoring a balance between the branches that had been distorted by activist liberal judges. Democratic presidents as well as Republican ones who come after Trump will benefit from these precedents, they say. And, they add, the notion that Congress has ceded power to the president is belied by his struggle to push through his budget bill.
“President Trump has restored the balance of power and our long-revered checks and balances, marking a monumental shift from the previous administration, which used the judicial and Legislative Branches to perpetuate the Biden-Harris administration’s relentless lawfare and witch hunts,” White House spokesman Harrison Fields said in a statement. “Defending the Executive Branch as a coequal branch isn’t yielding power; it’s the constitutionally sound thing to do.”
President Donald Trump takes part in a signing ceremony in the President’s Room soon after his swearing-in. – Melina Mara/The Washington Post
Still, it was not always this way. Not all that long ago, Congress’s leaders were more willing to assert their power against the White House.
Senators such as Robert C. Byrd, a West Virginia Democrat who died in 2010, fiercely defended the role of the Senate, occasionally taking on presidents of his own party. It was Republican senators who told President Richard M. Nixon he had to resign or the Senate would remove him. Van Hollen recalled that when he was a Senate staffer, a Republican-led Congress overrode President Ronald Reagan’s veto of sanctions on apartheid South Africa.
“You would never see anything like that today,” Van Hollen said. “I cannot imagine in any universe Senate Republicans and House Republicans overriding a Trump veto, even if all of Congress’s powers were on the line.”
A striking example of a branch pulling back its own power came last week, when the Supreme Court ruled that district judges generally cannot issue nationwide blocks on a president’s actions, even if they consider them unconstitutional. The ruling came after challenges to an executive order by Trump that sought to end automatic citizenship for children of undocumented immigrants born on U.S. soil.
Justice Amy Coney Barrett said in her majority opinion that the Judiciary Act of 1789, which established the U.S. courts system, did not envision nationwide injunctions. Justice Ketanji Brown Jackson, in a furious dissent, accused the majority of creating a world where the president can break the law and no court can stop him.
“Courts must have the power to order everyone (including the Executive) to follow the law — full stop,” Jackson wrote. “To conclude otherwise is to endorse the creation of a zone of lawlessness within which the executive has the prerogative to take or leave the law as it wishes.”
In a sentence that startled some court-watchers, Barrett accepted the notion that judges may not be able to stop a president’s illegal acts. “No one disputes that the Executive has a duty to follow the law,” she wrote. “But the Judiciary does not have unbridled authority to enforce this obligation — in fact, sometimes the law prohibits the Judiciary from doing so.”
The decision in a sense echoed a ruling from a year ago, when the justices found that presidents are immune from prosecution when performing their “core” duties and that the other branches cannot do anything about it — short of impeachment and removal, which Congress seems less inclined to pursue these days.
Kamenar said the Supreme Court is not handing power to Trump, but rather imposing appropriate restraints on itself. He cited a line from Barrett’s opinion that “when a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” While the opinion effectively strips lower court judges of power, Justice Brett M. Kavanaugh said in a concurring opinion that the Supreme Court would still be “the ultimate decisionmaker” on whether certain executive actions can be blocked or take effect.
Michael Gerhardt, a law professor at the University of North Carolina, noted that the Supreme Court did not halt nationwide injunctions when conservative judges imposed them on President Joe Biden. That reveals the decision’s partisan underpinning, he said.
“It’s hard to come up with a judicial ideology that could explain the outcomes,” Gerhardt said. “If there is a principle at all, it’s really hard to figure out.”
President Donald Trump is sworn in by Chief Justice John G. Roberts Jr. during Monday’s inauguration at the Capitol. – Ricky Carioti/The Washington Post
In 1997, Gerhardt recalled, the Supreme Court ruled 9-0 against President Bill Clinton’s effort to delay Paula Jones’s sexual harassment suit, with the two Clinton-appointed justices joining in. “There is not an analogue to that on the Roberts court,” Gerhardt said.
The Supreme Court’s conservative majority — including three Trump nominees from his first term — has also issued orders clearing the way for Trump to seize power from Congress while litigation continues in the lower courts. It has let Trump fire independent regulators, even when Congress explicitly protected them from at-will removal. It has allowed the U.S. DOGE Service access to sensitive Social Security Administration data despite privacy laws passed by Congress.
Last month, Trump issued an order allowing TikTok to keep operating in the U.S. for an additional 90 days, his third extension and one without a clear legal basis. Congress passed a bipartisan law last year aimed at barring TikTok in the U.S. unless the video-sharing app divests from Chinese ownership, and the Supreme Court in January unanimously upheld that measure.
On a handful of occasions, individual Republicans have spoken out against Trump’s assertions of presidential power. Sen. Rand Paul of Kentucky took to the Senate floor in an unsuccessful effort to end Trump’s declaration of economic emergency, which he was using to impose tariffs on Canada.
Paul said tariffs are clearly taxes — and the Constitution gives the taxation power to Congress. More fundamentally, he said, the American system of government depends on the three branches aggressively checking each other, not one being subservient to another.
The founders “were so worried by having a monarchy, they were so worried about having all the power gravitate to the executive, that they said, ‘We must split the power,’” Paul said. He added: “The Constitution doesn’t let us give our power away. … We can’t just say: ‘Here, Mr. President, take it.’” The Senate narrowly passed his resolution, but the House did not take it up.
More recently, Rep. Thomas Massie (R-Kentucky) challenged Trump’s decision to intervene in the Israel-Iran war, joining with Rep. Ro Khanna (D-California) to introduce a resolution blocking the U.S. armed forces from “unauthorized hostilities” in Iran.
“The Constitution does not permit the executive branch to unilaterally commit an act of war against a sovereign nation that hasn’t attacked the United States,” Massie said in a statement. “Congress has the sole power to declare war against Iran.” The resolution became moot after Israel and Iran agreed to a ceasefire.
Fifteen years ago, more lawmakers seemed willing to defend their prerogatives, even against a president of their own party. At a May 2010 committee hearing, Sen. Byrd spoke against weakening the filibuster at a time when Democrats were eager to push through President Barack Obama’s agenda.
“We must never, ever, tear down the only wall, the necessary fence, this nation has against the excesses of the executive branch,” Byrd said, adding, “The Senate has been the last fortress of minority rights and freedom of speech in this republic for more than two centuries.”
Sen. Robert C. Byrd (D-West Virginia), right, talks with Transportation Secretary Norman Y. Mineta and Sen. Patty Murray (D-Washington) before a Senate Appropriations Committee hearing in 2002. – Ray Lustig/The Washington Post
Byrd regularly gave lengthy speeches on the Senate floor about the chamber’s unique history and power, sometimes prompting eye-rolling from his colleagues. In 1999, Byrd urged fellow senators gathered in the historic Old Senate Chamber to take seriously their constitutional role in Clinton’s impeachment trial.
No one of either party plays a similar role in the current Congress.
Some in both parties warn that if justices and lawmakers allow presidential power to grow out of control, a future Democratic president could take advantage of the new arrangement as easily as Trump has.
Others doubt that future presidents will match Trump’s aggressiveness and his willingness to test limits, saying the current dynamic may be an outlier.
“Whether this changes the norms of the office and this is the frightening new normal, or whether this is an aberration, we can’t know at this time,” said Chemerinsky, the Berkeley law dean.
Courtesy/Source: Washington Post
