Josh Chafetz is professor of law at Cornell Law School and author of the new book, Congress’s Constitution: Legislative Authority and the Separation of Powers, from which this article draws. Follow him on Twitter @joshchafetz.

Donald Trump’s young presidency is already prompting many Americans to dust off their high-school civics knowledge and think again about concepts like the “separation of powers,” interbranch “checks and balances” and the proper functioning of the federal government. At the same time, it is prompting many pundits, especially but not exclusively on the left, to worry that Trump presents an unprecedented threat to the Constitution.

Many are asking aloud questions that in recent times had only been whispered: Do the Constitution’s checks and balances still work? Is James Madison’s 18th-century notion that “ambition” could be trusted to “counteract ambition” applicable to an era of partisanship so intense that it’s warping people’s very conceptions of reality? Can the other constitutional branches—and especially Congress—check President Trump?


As it turns out, the answer thus far is—more or less—yes: Congress is providing a check on Trump’s powers. It may not be happening as swiftly or as comprehensively as some Democrats might like, but the legislative branch is making its weight felt in the Trump era in a manner that, if it continues, bids fair to leave Trump with a reputation as an extraordinarily weak modern president.



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To understand why, we need to correct a common misperception about the separation of powers. The (quite brief) written Constitution does not allocate political power between the branches in a fully, or even largely, determinate manner. Instead, it gives each branch a set of potent tools that it can use to battle with the other branches for power in specific political contexts.

The Constitution, for instance, is very clear that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In other words, for the federal government to spend money, Congress must have passed a law authorizing that expenditure. But “How is the federal budget passed?” is a question primarily suited for the classroom. (I should know—it’s one I ask my students every year.) By contrast, “Who will decide the government’s spending priorities for the coming year?” is the sort of question that we actually care about in politics, because what we want to know as citizens is how much we will pay in taxes, what the money will be spent on, and who will decide the answer to those questions.

Obviously, a classroom understanding of the written Constitution is important to answering that question: If the president could spend money unilaterally, then Congress’ say over expenditures would be much reduced. But the constitutional text, while necessary, is by no means sufficient to understanding how the power is actually allocated. In 2011, the Republican-controlled House was able to force President Barack Obama and the Democratic Senate to make a huge number of concessions to Republican policy priorities as a price for keeping the government open. In 2013, the Republican-controlled House tried the same gambit and actually shut down the government—but this time, it was forced to retreat after a couple of weeks, reopening it almost entirely on Democrats’ terms.

The Constitution hadn’t changed in the interim, nor had partisan control of the relevant institutions. What had changed were the political dynamics: The 2010 elections had made clear that the Republicans had the electorate behind them in 2011; the 2012 elections, by contrast, proved that the political winds had shifted. In different political contexts, the same institutions, operating under the same written Constitution, had different levels of power.

So how might we relate this deeper understanding of the separation of powers back to the Trump era? First, note the importance of actors’ standing with the public: Republicans controlled the same institution in 2011 and 2013, but what changed was their popularity. In that vein, it’s worth noting that Trump came into office having lost the popular vote by quite a bit, with many of those who did vote for him having done so reluctantly, and his approval rating has been significantly underwater since the second week of his presidency. And he never had much support from GOP elites.

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Republicans’ control of both houses of Congress and the Supreme Court means, of course, that opposition to Trump from those institutions will have to overcome significantly higher inertial barriers than it would were at least one of them controlled by Democrats. But partisanship is not a static phenomenon—its forms and patterns change over time. When presidents’ standing in the public sphere is low, they often have trouble getting cooperation even from members of their own party. Think of George W. Bush’s inability to reform Social Security or to get Harriet Miers confirmed to the Supreme Court, or even the trouble that Obama had moving certain nominees (Dawn Johnsen, Goodwin Liu and Debo Adegbile, for example) through Democratic Senates.

If Trump remains unpopular—and especially if his unpopularity drags down the reelection prospects of other Republicans, as this year’s special elections thus far suggest he might—then conditions will be especially ripe for Republican pushback. And, at the extreme, if Trump’s presidency at some point really does look like it’s going down in flames, Republicans might sense the chance to develop a bipartisan reputation for heroism by vigorously opposing him.



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So that brings us back to our initial question: Is Congress strong enough to stand up to Trump?

Let’s begin with a congressional tool already discussed above: the power of the purse. Republican elites—both governors and members of Congress—have been overwhelmingly critical of the Trump White House’s budget proposals, and it seems apparent that both the deep cuts to many existing programs and a number of the specific programs that Trump does want to fund (the border wall, for example) are unlikely to survive the congressional budget process.

Also, Congress appears to be in no hurry to enact much of Trump’s desired legislative agenda. After significant turmoil, the House finally passed the American Health Care Act, but even before its dismal CBO score, a number of Senate Republicans made it clear that the upper chamber would draft its own bill. Senator Richard Burr of North Carolina recently said that he did not think the Senate would pass a health care bill this year—a remarkable on-the-record admission from a member of the majority party. And, of course, even if the Senate passed a health care bill, it would be another herculean struggle to get it through the House again.

Nor is health care the only part of Trump’s legislative agenda that has failed to make it through Congress. Neither an infrastructure bill nor a tax reform plan has yet materialized, and Trump faces the very real possibility of having no major legislative accomplishments in his first year in office.

Another domain in which Congress might push back against a president is that of personnel. Here, Trump’s record with Congress has in some sense been better. Only one of his Cabinet nominees, Andrew Puzder, nominated as secretary of labor, has failed in the Senate. And by nominating an establishment conservative—the sort of nominee a President Marco Rubio might have chosen—as his Supreme Court pick, Trump ensured that the Senate Republican caucus held together.

But in another sense, appointments have been a trouble spot for this administration. The administration has been almost shockingly slow to staff up at the sub-Cabinet level, and the time required to confirm those nominees later will detract still further from Trump’s legislative agenda. Moreover, Trump is certain to face significant trouble getting his choice of a new FBI director confirmed after having fired James Comey—which may partly explain why five candidates have withdrawn from consideration in the past few weeks.

Investigations offer another potent means by which Congress can confront a president, especially this president. There are currently four committees investigating links between Russia and the Trump campaign and administration. Many critics of the administration are frustrated by the pace of these investigations. But while there is little doubt they’d be going faster if Democrats controlled one chamber, the extent to which these investigations have proceeded and have damaged the administration is remarkable, especially for an administration less than 150 days old.

The March testimony of then-FBI Director Comey and NSA Director Michael Rogers before the House Intelligence Committee generated the headline-making confirmation that the FBI was, indeed, investigating the Trump campaign’s ties to Russia. After Trump fired Comey, the lead story out of acting FBI Director Andrew McCabe’s testimony before the Senate Intelligence Committee was that McCabe denied the White House’s claim that Comey had lost the confidence of the FBI rank and file. And in recent weeks, soon-to-retire House Oversight Committee chairman Jason Chaffetz has become increasingly confrontational toward the administration, insisting that the existence of a special counsel investigation is not sufficient reason for the FBI to withhold documents that have been requested by his committee.

Comey, of course, is set to testify before an open session of the Senate Intelligence Committee this week, and both intelligence committees continue to ponder how to respond to former national security adviser Michael Flynn’s invocation of the Fifth Amendment in refusing to turn over various documents under subpoena. All of these investigative moves required Republican buy-in, and none of them are exactly helpful to this administration.

So, what is the verdict on Congress’ uses of its tools to push back against Trump? So far, mixed. It certainly has not been a record of unalloyed partisan subservience, but neither has it been one of sustained opposition. But it is worth noting that opposition tends to be self-reinforcing: Insofar as it prevents the administration from getting policy wins, or furthers a narrative of failure, fecklessness or corruption, it will tend to lower the president’s public standing still further. That, in turn, will encourage and embolden congressional opposition, which will, in turn, produce more failures and embarrassments for the administration.

Nothing about that dynamic is inevitable, of course. Trump could conceivably turn things around, and an exogenous shock to the system could scramble political incentives and interactions. But the mere fact of unified Republican government does not guarantee Trump a free hand, and Congress has plenty of tools with which to push back, should it choose to do so.