The great congressional vanishing act
Plus, tracking Trump’s delay game
House Republicans kicked over the negotiating table on a package that combined border security with aid to Ukraine.
There are dozens of different stories contained in this one event. The shifting debates around immigration politics in the U.S. The growing secessionist cosplay at the border. The stunning political cynicism of Donald Trump and his supporters who want to kill a deal so they can accuse Biden of inaction. The grim implications for the Ukrainian people about to enter their third year of war against a would-be conqueror.
All of these are important and complex. But I want to focus specifically on one remarkable statement Saturday from Speaker Johnson:
“President Biden falsely claimed yesterday he needs Congress to pass a new law to allow him to close the southern border …. he can and must take executive action immediately to reverse the catastrophe he has created.”
-@SpeakerJohnson
In other words, Congress abdicates. The Speaker of the House, the most important officer in the “first branch” of our government, is insisting that major changes in U.S. immigration policy, (regardless of the merits of those changes) should be decided not by Congress, but instead by unilateral presidential decree. Even when bipartisan legislation is close to the finish line.
A much deeper problem in our democracy, revealed in one statement.
Congress has lost its will to solve problems
Putting aside the law (Speaker Johnson is likely wrong, an executive order could well be struck down) and the politics (this is transparently a political gambit ordered by Donald Trump), this moment is part of a longstanding decline in Congress’s ability and willingness to solve hard problems by passing laws. Yes, there have been bright spots in recent years — ECA reform and infrastructure are two of the brightest — but those examples illustrate the narrow range of issues on which consensus-building has been possible. Overall, the trend is still decidedly downward.
There are a lot of reasons for this decline, ranging from the nationalization of politics to the pressures of the media and internet age to the growing weaponization of the filibuster. But above all, two things happened: first, institutional loyalty to Congress — defending the interests and prerogatives of Congress as a whole — was gradually replaced by partisan allegiance (or opposition) to the sitting president. Second, our party system went from working like an invisible multi-party system, with shifting coalitions and overlapping constituencies, to the two rigid, partisan blocs we know today. And so, for many Congressional leaders, politics have become visibly more important than governing.
And to be clear, it may not be symmetrical, but there are examples of this from both parties. For example, Schumer on declaring a climate emergency in 2021: “I think it might be a good idea for President Biden to call a climate emergency… then he can do many, many things under the emergency powers that wouldn’t have to- that he could do without legislation.”
(My colleagues explained at the time the problem with governance-by-emergency.)
Back in 2022, David French summed the problem up simply in an article in The Atlantic, “The Constitution Isn’t Working”:
The problem is simply this: Congress was intended to be the most potent branch of government. It is now the most dysfunctional. And it’s dysfunctional in part because the Founders did not properly predict the power of partisanship over institutional responsibility.
Even worse, Congress’s dysfunction radiates to other branches of government. Both the presidency and the judiciary assume more power than they should, escalating the stakes of presidential elections and the intensity of judicial confirmations.
In other words, as Congress abdicated, the other two branches have stepped into the void. Instead of a deliberative democracy, we are trending towards executive and judicial absolutism. The Framers put Congress in Article I of the Constitution for a reason — but it’s quickly making itself the least relevant branch.
Dangers of Congress leaving things to executive fiat
If Congress willingly abdicates its role in setting border and immigration policy to the president, it paves the way for a president to do a lot more than that. (For more on some of the nightmare scenarios, see our Authoritarian Playbook 2025.)
But it’s not just that an unchecked presidency is ripe for abuse by autocrats. There are also broader reasons to be concerned about this growing imbalance between the branches:
Lack of collective responsibility: major policy solutions (like, say, immigration reform) require broad coordination and accountability between different actors and interests. Putting everything in the hands of one person likely means more division and blame and fewer true solutions.
More extreme outcomes: legislation, by definition, almost always requires compromise, deliberation, and stakeholder input. The same is not necessarily true for unilateral executive action.
Divisive and theatrical politics: as many legislators spend less time negotiating policy, that means more time on cable news and social media — with predictable results.
Less policy continuity and more whiplash: when each presidential election potentially means immediate and major shifts in existing policy (and not just future policy decisions) that both heightens the stakes of each election and can lead to damaging instability.
Finally, the big one: The abdication of Congress opens the door for the judiciary to take on a far larger role in our system, as it has done.
First, the Supreme Court can often make choices unilaterally simply because Congress is unable to even respond or clarify statutes (for example, Congress has the authority to restore the full power of the Voting Rights Act. It has failed to do so.). Second, the Court, and not Congress, has become the primary policy making counterpart to the executive branch — and appears likely to claim an even greater role for itself (if you aren’t following Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, you should be).
Four priorities to re-empower Congress
We call this briefing If you can keep it because we don't want to just dwell on what's not working but also highlight the solutions. Here are four ways Congress can get its mojo back:
Rein in emergency & war powers: There are bipartisan proposals ready to go that would restrain perhaps the greatest areas of imbalance — presidential emergency powers and war powers.
Reduce Congressional veto points: Part of the problem is how difficult it is to pass legislation (the U.S. is the only democracy that in practice requires a supermajority for ordinary legislation). Filibuster reform and other streamlining measures should be on the table (and yes, there are lots of options for reforming the filibuster).
Modernize Congress as an institution: Congress has quietly worked in recent years to modernize and improve its own institutional capacity (everything from staffing to technology systems). That work should continue and accelerate.
Reform our electoral system: Finally, because Congress’s dysfunction is often a product of how we elect our legislators, reforming our electoral system is likely necessary in the long run.
Broken primaries, weakened parties
In case you missed it, earlier this week we had a conversation with Dr. Jennifer Dresden about the primaries, the fact that Trump is being treated as the nominee after getting just 232,000 votes, our struggling political parties and the ways out of this whole mess. One of the core takeaways:
For all that they’re unpopular, democracy itself needs functional political parties. A lot of what stabilizes democracy is norms and the willingness of leaders to stick with those norms. Historically, political parties that have been willing to embrace some minimal democratic standards and hold their own members to them — really basic things like accepting defeat when you lose an election and eschewing violence — those parties have played a key role in stabilizing democracy in the face of authoritarian threats. But they have to actually do that and shut out would-be autocrats. This does actually happen — scholars like Steven Levitsky and Daniel Ziblatt point to examples like Belgium and Finland in the 1920s and 1930s. Today, though, a dominant faction in the Republican party has ceased to follow that model.
Read the whole conversation here.
Trump’s election conspiracy case has been paused for 57 days
Donald Trump is aiming to deflect criminal charges for attempting to overturn the last election with a delay strategy — seeking to push the trial past the November election by claiming that he is above the law. Trump’s claims to absolute immunity won’t prevail (courts have repeatedly rejected them), but his aim here is to run out the clock. And that tactic is in danger of working: The wait for a DC Circuit decision enters a fourth week.
Per The New York Times’ Jesse Wegman:
With all due respect to the judges on the second-highest court in the land, what on earth is taking so long? Yes, the wheels of justice grind slowly, etc., but they don’t have to, especially not when the case is an easy one and the entire country is waiting to find out if one of the two likely major-party candidates for president is a convicted criminal. Each day that goes by makes it more likely Trump will not face trial for his attempt to overthrow the last election before he runs in the next one.
For more on the Trump prosecutions and the rule of law, lots of good resources here.
Not taking it for granted
Last week, I asked about the things about our democracy you’re not taking for granted and we heard a wave of inspiring responses. I want to share one in particular from a reader named Diane:
When I was a Peace Corps volunteer in Paraguay when Don Alfredo Stroessner was the dictator, it was unsafe to share one's opinions in public spaces for fear of being reported. Neighbors had to whisper. Government employees fretting about the rising costs of food or bus fares would change the subject when certain people came into the room. The government had spies everywhere who could report such conversations.
Because of that experience, back home, here in the U.S., I am aware of the freedom I have to complain about my government or my legislators anywhere without fear I will be reported to a government agency and brought in for questioning or imprisonment. Today, I am a bit fearful that someone might hear me and become aggressive or even violent, but that would not be because our government is condoning or even paying for such behavior. I am grateful to be living in a democracy where I do not need to hide my opinions.
These freedoms are precious. And they aren’t guaranteed.
What else we’re tracking:
It’s not all bad news on Congress asserting its prerogative. A bipartisan coalition is pushing back on the strikes in Yemen and demanding congressional approval before any future strikes by the Biden administration.
If you’re looking for level headed analysis of the extremely complicated (and admittedly confusing) legal side of the ongoing border situation, I recommend University of Texas law professor Steve Vladeck’s substack One First (relevant posts here and here).
Last week, Robert F. Kennedy Jr. made it explicit: His goal is to try to force a contingent election. The New York Times explains why this is dangerous: “the last person to try to pull such a stunt was George Wallace, [Alabama]’s arch-segregationist governor.” (More from last year on the risks of a third party triggering a contingent election here.)
If you watch one TED Talk this week, make it this one. Activist Sofia Ongele: "Democracy is more fun and inviting when you take it into your own hands… get creative and cause a ruckus!”
Another snippet of how the democracy crisis is eroding governance: “America’s Political Divide Is Poisoning Our Food,” in Mother Jones.
The Brennan Center has a sobering new report on an anti-democratic trend that is as widespread as it is under-recognized. “[O]fficeholders serving in local and state government across the country have faced a barrage of intimidating abuse.”
I won’t make a habit of recommending amicus briefs, but this one is really worth your time: legal giants Akhil and Vikram Amar on the lost historical episode underlying Section 3 of the Fourteenth Amendment. Spoiler: it involved an attempt to obstruct the counting of electoral votes with violence. You couldn’t make this up. (The brief is very readable, but if you’d prefer a summary, Jonathan V. Last has you covered.)
For a definitive and comprehensive read on the subject, check out Democracy Forward’s rigorous analysis unpacking Project 2025’s blueprint for dismantling the civil service.
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