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Congress Is in Cardiac Arrest. The Supreme Court Holds the Paddles | Opinion

Members of Congress have long suffered from the view that the give and take in the legislative branch—the earmarks, the log rolling, and the back slapping integral to governing the nation—was just a great big bucket of sleaze.

Many Americans were glad when the burn-the-place to the ground tea partiers entered Congress and simply refused to compromise. When later, the louder MAGA crowd stepped up and were answered by Antifa and DEI, the polarization reached new extremes that pandered to the far left and the far right.

But where did that leave the rest of us? Those who yearn for peace and stability, commerce and comradery, amity with our friends and neighbors? Had we considered it carefully we might well have missed the old compromise Congress that functioned through back-room deals but functioned, preserving Congress as a credible counterbalance to the imperial presidency.

After all, that counterbalance was central to the dreams of the founders. James Madison understood the politics perfectly. He wanted ambitious men in Congress to offset ambitious men in and around the presidency. He wanted the courts to referee this competition, ensuring the country was a government of laws and not men.

Today, Republicans and Democrats in Congress should realize that the collective weight of Congress, as a check on the presidency, is more important than partisanship. Congress’s failure to assert its institutional will damages Democrats when Republicans hold the presidency and Republicans when Democrats hold it. But both parties should remember that it damages all of us every day.

And that’s because President Donald Trump is trying to permanently neuter Congress by assuming the power to cut spending ordered by Congress, effectively eliminate agencies mandated by Congress, and use the entire federal apparatus to favor and disfavor whomever he pleases.

Fortunately, the Supreme Court has before it now a chance to remind Congress of its role. The case in front of the court is about the Federal Communications Commission’s power to raise money from phone carriers to subsidize universal service. Congress handed this tax-and-spend like power to the executive branch. The court now has the power to send it back to Congress.More important, the case creates an occasion to remind Congress and the public that the United States is governed by three equal branches of government. This separation of powers is why it’s unconstitutional for one branch of government—even willingly—to cede its power to another branch. This is a conservative talking point—opposing unelected bureaucrats making America’s most important decisions. Justice Neil Gorsuch even wrote a book about it.

But now its important for another reason. The collapse of congressional power is a short, paved road to dictatorship. Pettifogging bureaucrats grinding slowly at their administrative engines might be replaced with a totally politicized central government aimed at enhancing the power of one person: the president. That’s what the alleged Department of Government Efficiency (DOGE) and the president are up to now. And the Supreme Court has a chance to stop them.

Whichever way the FCC case comes out, the court should use its decision to give America and the other branches a lesson on how the separation of powers work. The legislature passes laws that tax, spend, and regulate. The president executes those laws—all of them—not just the ones he likes. The judiciary has the final say over what is the law. No branch can add to its power. No branch can give up its power or refuse to exercise it.

Having this system of checks and balances favors neither the left nor right. But right now, the congressional leadership is paralyzed in the face of Trump’s massive assertion of executive power. In some cases, this is because of approval of Trump cutting the federal workforce and cutting spending. In others it’s out of fear of reprisals.

But isn’t that fear a good reason for the Congress not to let the president gain even more power? As Shakespeare put it, Ceasar “would not be a wolf, but that he sees the Romans are but sheep.” We don’t need a sheepish Congress. If the members of Congress can’t see the danger, the Supreme Court had better remind them. Before it’s too late.