The Trump administration’s opening weeks have been a whirlwind of action, including more than 80 executive orders, a Department of Government Efficiency that has shut down agencies and fired tens of thousands of federal workers, and major changes in the direction of foreign policy. As the White House tests the limits of executive power, Congress, led by a narrow Republican majority, has done little. We spoke to Ben Schneer, assistant professor of public policy and expert on American politics and political representation, about the separation of powers, historical precedents, and political prerogatives.
Q: How are you viewing Congress’s behavior right now? Is this a historical aberration or maybe a reversal to the way it has behaved in other periods?
Schneer: The general unwillingness of Republicans in Congress to exercise an oversight role, or to place themselves at odds with a Republican President is a continuation of how things have been going the past few years. If you’ve seen discussion about “separation of parties, not powers”—that Congress will only meaningfully check the executive when occupied by an opposing party—I’d say the last month fits that framework.
At the same time, I don’t know that there is a clear historical precedent for the last month or two—with many sweeping directives reshaping the federal government and testing previous limits of executive power while Congress is sidelined. There have been moments where presidents tested the limits of executive power: Lincoln suspending habeas corpus, Jackson removing the deposits from the Bank of the United States, Nixon initially refusing to turn over the Watergate tapes. But in each case Congress reasserted itself one way or the other. In this case, with such a narrow majority and possibly being skeptical of some of these executive actions, it seems Congress doesn’t yet have the will or the votes to reaffirm some of the recent, boundary-pushing executive actions—impounding funds already appropriated, eliminating executive agencies, firing inspectors general without notice or cause—nor will they do anything to put up roadblocks. So the outcome so far has just been inaction.
“Congress doesn’t yet have the will or the votes to reaffirm some of the recent, boundary-pushing executive actions … nor will they do anything to put up roadblocks. So the outcome so far has just been inaction.”
Q: Are there things they are doing behind the scenes that protect their constitutional role or are they abdicating it?
Schneer: Things are evolving quickly, but at the time of this chat I’ve seen news reports suggesting that Republican members of Congress are meeting with Elon Musk to discuss, one, the possibility of consulting more directly with Congress on cuts to federal agencies and, two, actually encoding some of these cuts in rescissions packages, essentially cancelling previously spending, that would be put to votes in Congress. I think Republican members of Congress probably think some of these cuts may be struck down by the courts precisely because they seem to encroach on Congress’s power of the purse and so endorsing them explicitly will make them more likely to make it through the courts. Of course, that path carries electoral risk since members of Congress will have to go on record in support or opposition to things like firing thousands of workers at the Department of Veterans Affairs, or in the National Parks.
Q: What are the politics behind the way the parties are behaving?
Schneer: You can see why even members of Congress who support the White House’s actions might still not want to weigh in. Certainly, the easy answer a member of Congress can give right now to an angry constituent is “let’s wait and see what the courts say” about any of a number of the cases related to executive overreach that will be coming before the Supreme Court.
On the other hand, Democrats have generally not been very visible in opposition. There could be more Democratic members trying to articulate the case why some of the more aggressive actions taken by the administration are bad for their constituents and potentially unconstitutional. These efforts would be more about developing arguments that work and giving voice to the constituents already harmed by all of this.
Hopefully, the process that will play out the next few years will be an example of democratic representation at work. If enough people are truly incensed, that should matter for who wins elections and for how constituents communicate with their members of Congress. If Congress doesn’t act (one way or the other), voters can mobilize to either replace current members of Congress or prevail upon sitting members to exercise meaningful congressional oversight, to rewrite and re-pass legislation blocking impoundment or the elimination of agencies, to have public hearings on these issues, and so on. But this doesn’t help much right now.
I wrote a paper with Dan Carpenter a number of years ago on the response to President Andrew Jackson removing the deposits from the Bank of the United States. Unilaterally taking all the money out of the Bank of the United States is an example of a president taking an action that flew in the face of Congress and tested the limits of executive power. In fact, Jackson had to fire several treasury secretaries until he could find one who would comply. The impact of overstepping these bounds took a while to play out, but ultimately opposition to this executive overreach crystallized and lit a spark that led to the formation of the Whig party. An entirely new political party emerged out of that moment and the Democrats (Jackson’s party) eventually lost the presidency. Taking dramatic executive action can set in motion political movements and opposition that can have far-reaching consequences.
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