The Constitution has legal authority, but its practical power is socially and institutionally constructed.

 

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.