Bonus 184: The Costs of a Quiescent Congress

Many Supreme Court decisions limiting judicial review have held out the existence of political checks as a viable alternative. Each day brings new evidence of the growing costs of such a myopic view.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

This week’s headlines are replete with stories of the Trump administration doing things that certainly seem illegal or otherwise abusive—but for which there is no immediately obvious judicial remedy. From demolishing the East Wing of the White House; to continuing to launch offensive military strikes against (alleged) drug boats in international waters; to unlawfully transferring military funds in order to pay troops during the shutdown; to strong-arming the Department of Justice into a $230 million “settlement” because … it had the temerity to investigate Trump’s behavior, it’s easy to wonder what the heck is wrong with a constitutional system in which this kind of behavior can go on without any meaningful sanction—and to worry about what more is coming next.

There is, of course, an obvious culprit for much (if not most) of this, and that’s the United States Congress—and, in particular, the Republican majorities in the House and Senate, which have all-but surrendered any willingness to assert Congress’s institutional interests against President Trump. To be sure, the idea that the separation of parties has become more important than the separation of powers is hardly a new one. But the 119th Congress was already taking that attitude to the extreme before the shutdown; it’s only gotten worse over the last three weeks.

The Constitution’s system of checks and balances was predicated on the idea, as James Madison put it in Federalist No. 51, that “ambition must be made to counteract ambition”—that stable, democratic government would best be promoted by the three branches of the federal government pushing against each other’s limits. For decades now, we’ve had an ambitious executive and an ambitious Court. But for an array of reasons, we’ve also had an increasingly quiescent Congress—especially when the President’s party also controls both chambers of the legislature. The idea that Congress is dysfunctional dates back to long before January 2025. But Congress over the past nine months has become effectively afunctional—and the costs of its fecklessness are mounting (dramatically) by the day.

My goal in this post isn’t to make this fairly obvious point. Rather, it’s to highlight a largely neglected consequence of Congress’s abandonment of its institutional checking function—how it turns the analytical justifications for various strands of Supreme Court justiciability doctrines on their heads. For generations, in cases that have identified limits on federal judicial power, one of the normative defenses of those limits has been the availability of other checks on executive overreach—especially those emanating from the U.S. Capitol. It seems at the very least worth asking whether some of those doctrinal understandings should be revisited in light of the present-day political reality—or whether the Court should continue to bury its head in the sand by holding out the increasingly fictional specter of a Congress that sees its job as anything other than getting out of the President’s way. To be clear, I don’t think the answer is as obvious as it might appear at first blush. But it’s a conversation we ought to be having—sooner, rather than later.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court (no later than) next Monday. For those who are, please read on.