The Constitution has legal authority, but its practical
power is socially and institutionally constructed.
The Constitution of the United States is supposed to be the
underlying basis for our government and the legal framework of our country. It
established three independent branches of government, each responsible for
providing checks and balances on the others. Congress writes laws and controls
federal spending. The president executes those laws. The courts determine
whether the actions of government comply with those laws and the Constitution.
But there is a fundamental weakness in that system that we
don't talk about enough: the Constitution cannot enforce itself.
Ultimately, our constitutional system depends upon elected
officials and government institutions accepting the limits placed upon their
own power. The Constitution is binding law, but in practice its protection
depends upon people being willing to enforce them. If one branch continually
pushes beyond its constitutional boundaries while another branch chooses not to
defend its own authority, the words written haven't changed. What changes is
whether those words govern us.
That is increasingly what concerns me about the expansion of
presidential power
This isn't simply about whether you like the current president
or not. It isn't even primarily about whether you agree with his policies. It
is about something much more fundamental: whether we still believe that a
president must operate within the constitutional powers of the presidency, and
whether Congress is willing to defend its own constitutional authority when a
president does not.
Article I gives Congress the power of the purse. The
president can propose a budget. Congress decides what gets funded. Congress
passes appropriations legislation. The president can sign it or veto it. But
once Congress passes an appropriation and the president signs it into law, the
president isn't supposed to have a constitutional line-item veto allowing him
to decide afterward which parts of that law he feels like implementing.
Yet that boundary has repeatedly been tested by this
administration. The Government Accountability Office has found violations of
the Impoundment Control Act involving congressionally appropriated money for
the National Institutes of Health, Head Start, electric-vehicle charging
infrastructure, the Institute of Museum and Library Services, school energy
projects and FEMA programs. These aren't simply complaints from his political
opponents. They are formal determinations by the nonpartisan congressional
agency responsible for appropriations-law oversight.
Consider what that means at the most basic level. Congress
debates a program. Congress votes. A bill passes the House and Senate. The
president signs it. The money is appropriated. Then the executive branch
decides it doesn't support the program and withholds the money.
If a president can do that whenever he disagrees with
Congress, then what exactly does Congress's constitutional power of the purse
mean?
There is already a legal process available to a president
who believes Congress has appropriated money unwisely. He can ask Congress to
rescind it. What he cannot simply do is transform "Congress appropriated
this money" into "I have decided this money will not be spent."
If that becomes accepted practice, the president has effectively acquired a
legislative power the Constitution never granted him.
And this is where Congress's behavior becomes every bit as
important as the president's.
Presidential power doesn't expand only because presidents
take power. It expands because Congress allows power to migrate away from
itself.
We are watching that dynamic extend beyond spending.
Presidents increasingly govern through executive orders and emergency
declarations rather than legislation. Executive orders are perfectly
legitimate tools of presidential administration, but they are not laws
passed by Congress. Their authority has to come from either the
Constitution or authority Congress has already delegated. An executive order
cannot magically create a presidential power that doesn't otherwise exist.
Yet the distinction between executing laws and effectively
making them becomes less meaningful when Congress simply watches it happen.
The same concern exists with war powers. The Constitution
deliberately divided military authority between the president and Congress. The
president is commander in chief, but Congress possesses the powers to declare
war, raise and support armies and appropriate the money necessary to wage war.
Over many decades—and under presidents of both parties—Congress has steadily
allowed presidents greater freedom to initiate and sustain military operations
without the kind of explicit congressional authorization the constitutional
design seems to contemplate.
The current president did not create that problem. But the
continuing expansion of unilateral presidential military authority demonstrates
where decades of congressional abdication can lead. Whatever one thinks about
the merits of a particular military operation, Congress should have to put its
name on America's wars. Members of Congress shouldn't be able to avoid
politically difficult votes while allowing the president to make decisions of
war and peace largely on his own.
We see a similar willingness to test institutional
boundaries in Washington itself. Major federal construction projects have moved
forward while questions remain about congressional authorization,
appropriations and required planning approvals. The proposed monumental arch in
Washington, for example, has generated litigation and congressional objections
over whether the executive branch can proceed without the approvals Congress
and federal law require.
Again, the larger issue isn't whether someone likes an arch.
It is whether a president can decide that he wants something
built, find a way to finance or begin it, and effectively dare Congress or the
courts to stop him.
That governing philosophy—act first and force the other
branches to react later—is precisely why checks and balances matter.
Courts have pushed back against several of this
administration actions. But even that exposes a deeper weakness in our
constitutional system: a court can issue an order, but a court does not
possess an army of constitutional referees standing outside the White House
waiting to enforce it.
Consider the White House's decision to ban CNN, MS NOW and
Politico from White House grounds. The administration revoked their press
credentials after the president attacked their coverage as "fake
news." The three organizations sued, arguing that the government had
retaliated against them for their journalism in violation of the First
Amendment and had denied them due process under the Fifth Amendment.
A federal judge then ordered the White House to "immediately
return, reinstate, and restore" their access. Judge Timothy Kelly
concluded that the organizations were likely to succeed in showing that their
credentials had been revoked without constitutionally adequate due process, and
he found little evidence supporting the administration's claim that the ban was
necessary for national security.
And then something revealing happened.
Reporters from the banned organizations were still turned
away from the White House Thursday morning, after the court had issued its
order. Their attorneys went back to court alleging noncompliance and sought an
emergency hearing. The White House said it was in the process of restoring the
credentials, and the journalists were eventually readmitted around noon.
The access was ultimately restored. But the episode
illustrates the larger point: a judicial ruling does not enforce itself any
more than the Constitution does.
A judge writes an order. Then human beings have to obey it.
If they do not, someone has to return to court. Lawyers must file another
motion. The judge may issue another order or eventually invoke contempt powers.
And the machinery of government must ultimately carry that order out.
That is why saying "the courts will stop it" is
an inadequate answer to the accumulation of executive power.
Courts are an essential constitutional check, but they are
primarily reactive. Someone must have standing. Someone must sue. Someone must
pay lawyers. A judge must hear the case. Appeals may follow. And even after a
plaintiff wins, executive officials must comply with the judgment.
Meanwhile, the challenged government action may already have
occurred.
This is particularly troubling when the dispute involves
freedom of the press. The First Amendment says that government shall make no
law abridging freedom of speech or of the press. But those words do not
physically prevent a president from ordering journalists removed from
government property. The protection becomes real because courts enforce it,
executive officials comply with those courts, Congress defends constitutional
boundaries, journalists challenge violations and citizens refuse to normalize government
retaliation against disfavored speech.
Remove enough of those institutional commitments and the
words remain on the page while their practical protection steadily diminishes.
That is the distinction I think we too often miss when we
say, "But the Constitution doesn't allow that."
The Constitution doesn't do anything by itself.
It is paper and ink given extraordinary legal authority by a
society that has collectively agreed that its rules govern those who exercise
political power. In that sense, constitutional government is one of the most
consequential social constructs human beings have ever created. Its strength
comes not from the physical document but from generations of Americans, judges,
legislators, presidents, civil servants, military officers and citizens
behaving as though its limitations are binding.
The moment enough of those people stop treating those
limitations as binding, the Constitution has no independent mechanism capable
of climbing down from its display case at the National Archives and enforcing
itself.
That is why Congress matters so much.
Congress is not supposed to outsource preservation of the
separation of powers to federal judges. It is itself one of the principal
enforcement mechanisms the framers created.
Those powers are meaningless if members of Congress are
unwilling to exercise them against a president from their own political party.
That principle should be completely bipartisan.
Republicans should be willing to restrain a Republican
president. Democrats should be willing to restrain a Democratic president.
Every time members of Congress tolerate an expansion of presidential authority
because they approve of the immediate result, they establish another precedent
for the next president.
That is the thought experiment everyone should perform.
Imagine the president you trust least.
Now give that person every power you are currently willing
to tolerate when the president is someone you support.
If that prospect frightens you, then the power itself should
concern you.
There is another institution that matters here as well: the
press. Journalists don't have the power to enforce the Constitution, nor should
they. Their responsibility is different. They can make the exercise of
government power visible to the public.
When a president announces that federal money will no longer
be spent, the story shouldn't merely be that the president canceled another
program. The public needs to know that Congress appropriated that money and
understand the constitutional question raised when the executive refuses to
spend it.
When a president sends American forces into sustained
hostilities, coverage shouldn't stop with battlefield developments and
political polling. The public should be reminded that the Constitution gives
Congress significant responsibility over war and its funding.
When a president issues an executive order, journalists
should ask a very simple question: Where does the president get the legal
authority to do this?
And when courts block presidential actions, the story
shouldn't automatically be reduced to "the president versus another
judge." Explain what constitutional or statutory boundary the court says
was crossed.
The same concern extends into the government's
communications themselves. The White House has distributed manipulated and
AI-generated imagery as part of its political messaging, including altered
imagery depicting people the administration opposes. That may present a
different legal question from impoundment or congressional appropriations, but
it raises an important democratic one. Citizens should be able to distinguish
documentation released by their government from propaganda created to ridicule
or demonize political opponents. Once the government itself deliberately blurs
the distinction between reality and fabrication, something important has been
lost.
None of these concerns requires believing that every executive
order is unconstitutional. They aren't. Presidents possess substantial
executive authority. Congress has delegated enormous discretion to the
executive branch over decades, and courts have upheld many presidential actions
that critics claimed exceeded executive authority.
Because the argument isn't that the president is prohibited
from exercising presidential power. The
argument is that there must still be a boundary around that power.
The greatest danger isn't necessarily that one morning
America wakes up and someone announces that the Constitution has been
abolished. Democratic institutions can erode much more quietly than that.
Congress relinquishes a little authority here. A president discovers another
way around the legislative process there. Members of Congress remain silent
because their party controls the White House. Courts intervene occasionally,
but presidential actions continue until someone successfully challenges them. The
next president inherits all of the powers accumulated by the previous one and
pushes the boundary a little farther.
Eventually the exception becomes precedent, and the
precedent becomes normal.
This is how a presidency can gradually become something the
framers never intended—not necessarily a dictatorship in the literal sense, but
an office increasingly able to legislate, spend, withhold, wage war and
administer government without meaningful participation from the branch the
Constitution assigned those responsibilities to.
And that is why Congress's abdication may ultimately be more
dangerous than any individual president's overreach.
This president will eventually leave office. Every president
does.
The precedents will remain.
The Constitution was designed around a profound skepticism
of concentrated power. The framers didn't build checks and balances because
they expected every future president to voluntarily restrain himself. They
divided power precisely because they understood that human beings seek more of
it.
But separation of powers works only if the branches are
willing to defend their powers.
A president will naturally push the boundaries of
presidential authority. Congress is supposed to push back. Courts are supposed
to adjudicate disputes. The press is supposed to tell citizens what is
happening. And voters are supposed to hold all of them accountable.
The Constitution is not self-executing democracy. It is
an agreement about how power will be exercised and constrained.
We sometimes talk about it as though it were an independent
force capable of protecting the country from unconstitutional government. It
isn't. The parchment under glass at the National Archives cannot subpoena a
cabinet secretary. It cannot compel a president to spend money Congress
appropriated. It cannot restore a reporter's press credential. It cannot
prevent an unauthorized war. It cannot enforce a judicial injunction. It cannot
impeach anyone.
People and institutions do those things.
Congress does. Courts do. Executive officials do.
Journalists expose abuses. Civil society challenges them. And ultimately voters
decide whether constitutional restraint matters when the person violating a
boundary happens to be someone they otherwise support.
That is what makes our constitutional system simultaneously
remarkable and fragile.
Its authority is real. Its laws are real. Its limitations
are real. But its effectiveness depends upon a continuing collective
commitment to treat those limitations as binding.
If Congress refuses to defend its powers, if presidents
learn that they can act first and litigate later, if judicial decisions are
treated as obstacles to maneuver around rather than binding judgments, and if
citizens excuse constitutional violations whenever their own political side
benefits from them, we do not need anyone to formally abolish the Constitution.
We can leave every word exactly where it is.
We can continue celebrating Constitution Day. We can keep
the original document safely displayed at the National Archives. Politicians
can continue invoking it in speeches.
And at the same time, we can gradually hollow out the
system of government those words were supposed to create.
That is the danger.
The ultimate question is not whether we still have a
Constitution.
It is whether the institutions and people upon whom that
Constitution depends are still willing to enforce it when doing so is
politically inconvenient.



