Congress Faces Constitutional Crisis Under Trump's Leadership

The Founders would not have envisioned a Congress so supine in the face of Trump's barrage.

To say that what is happening now is a constitutional crisis is to put it too mildly. Let's call it what it is: a constitutional collapse.

Congress's abdication of its constitutional powers and responsibilities to an executive branch run amok -- or, you might say, run-a-Musk -- would surely have horrified the Founders.

"In republican government, the legislative authority necessarily predominates," James Madison wrote.

But during Donald Trump's first weeks in office, he has begun to unilaterally dismantle the U.S. Agency for International Development, which was created by Congress. He set a target on other parts of government with a legislative mandate, including the Education Department. He put a block on trillions in funding that lawmakers appropriated to a host of federal programs, until a court order stopped him. He fired 17 inspectors general without giving the 30-day notice to Capitol Hill required by law.

The framers clearly never envisioned a Congress that would be so supine in the face of such a barrage. Or a Senate majority that would, rather than advise, merely consent to such preposterously unqualified Cabinet choices as Robert F. Kennedy Jr. at the Department of Health and Human Services, Tulsi Gabbard to be director of national intelligence and former Fox News host Pete Hegseth to run the Pentagon.

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Or that the people's representatives -- even if they belong to the president's party -- would stand by as Elon Musk and his Band of Bros, without seeking the "legislative authority" that Madison thought was necessary, upended the civil service protection that lawmakers put in place for government workers more than a century ago. And while they were at it, rummaged through federal systems that contain the private information of tens of millions of Americans.

Even Trump's decision to slap tariffs on Canada, Mexico and China is a power grab, given that the Constitution vests Congress with the authority to "lay and collect Taxes, Duties, Imposts and Excises."

Trump has done so by declaring a state of emergency -- "the major threat of illegal aliens and deadly drugs killing our Citizens, including fentanyl" -- and citing a sweeping law known as the International Emergency Economic Powers Act. That act has never before been used as a means of imposing tariffs. Presidents in the past have employed it to enact economic sanctions, as President Joe Biden did on Russia after it launched its full-scale invasion of Ukraine in 2022.

The third branch of government has been stepping in here and there. Judges have blocked, at least for now, Trump's effort to rewrite the constitutional understanding that babies born on U.S. soil to undocumented parents are citizens, and his freeze on disbursing trillions in federal grants. But getting many of these questions into court is part of Trump's strategy; his allies think they can win at least some of these cases before right-leaning judges, permanently weakening Congress's ability to stand in the way of the executive.

Not so long ago, there were still figures in Congress who might have tried to stop all of this. After Sen. John McCain (R-Arizona) cast the deciding vote to block Trump's 2017 effort to repeal the Affordable Care Act, he explained: "We are an important check on the powers of the executive. Our consent is necessary for the president to appoint jurists and powerful government officials and in many respects to conduct foreign policy. Whether or not we are of the same party, we are not the president's subordinates. We are his equal."

And McCain was not alone. In the 1980s, Senate Budget Committee Chairman Pete Domenici (R-New Mexico) and other Republicans stood up to Ronald Reagan when the president tried to claw back congressionally approved spending through processes known as recissions and deferrals. Though Senate Republican leader Robert J. Dole (Kansas) and former Foreign Relations Committee chairman Richard Lugar (R-Indiana) supported George H.W. Bush's decision to go to war in the Persian Gulf in 1991, they demanded a special session of Congress to, as Lugar put it, "get an affirmative vote to authorize our staying power over there."

Those statesmen of an earlier era, all Republicans, recognized the reason that the Constitution's authors focused its first article on defining and elevating the role of Congress. The framers considered the legislative branch the most important one, because it was the closest to the people. So, it was entrusted with the power to make laws, which were -- as Article II made clear -- to be carried out with care by the executive branch.

Trump is getting not even a whisper of pushback from Republicans on Capitol Hill. "We don't see this as a threat to Article I at all. We see this as an active, engaged, committed executive branch authority doing what the executive branch should do," House Speaker Mike Johnson (R-Louisiana) claimed. No doubt, however, Republicans would be howling about executive overreach if a Democratic president were doing the same.

In a Congress where majorities in both houses quake before Trump as he tramples Article I, there is something vital to democracy that is missing. And alas, it cannot be found in any legal document.

"We're getting a pretty intense lesson in how much our constitutional order depended on people's character," McCain's former chief of staff Mark Salter told me. "Donald Trump is a character test that Republicans, almost to a person, have failed."