Members of Congress like to remind people that under the system of checks and balances crafted by our Constitution’s Founding Fathers, the legislative, executive, and judicial branches of the federal government are “coequal.”
But to paraphrase George Orwell, some are more coequal than others.
Over his four years as president, Donald Trump learned to maximize his powers as commander in chief far beyond that of any of his modern-era predecessors, allowing him to muscle through his policy initiative over a sometimes-reluctant Congress mostly controlled by his own party.
With a few exceptions, Trump effectively imposed his will on Congress, especially when it came to defense issues, making the executive the most powerful of the three branches.
Trump is an extreme example of what’s known as “unitary executive theory,” the idea that despite its oversight role, Congress is limited in how much power it has over the executive branch.
It’s what allowed Trump to refuse to testify in the congressional investigation of Russian interference in the 2016 election and to withhold from Congress his tax returns despite a provision of the tax code that states the House Ways and Means Committee may request the returns of any filer.
Presidents have a long record of invoking executive privilege to deny Congress access to documents and officials to deny Congress information it wants.
But in the final days of the president’s term, Congress delivered a decisive override of Trump’s veto of the National Defense Authorization Act, demonstrating that, if it can manage to forge a bipartisan consensus, it can be “first among equals.”
The separation of powers prescribed by the Constitution affords each branch the last word about something.
Article I gives Congress the most power to make laws, to declare war, and the power of the purse.
Article II, while not giving Trump the right to do whatever he wants as he has often claimed, does give the president broad powers to implement and enforce laws, to lead the armed forces, to make treaties, and, Trump’s favorite, the unchecked power of the pardon.
Article III gives the Supreme Court the power to invalidate laws as unconstitutional or presidential actions as illegal, but it must wait for someone to bring a case or for a case to filter up from a lower court.
In a test of wills, it is Congress that holds the ultimate trump card, the ability to checkmate the president with a veto override that he is powerless to overcome and, in the case of the Supreme Court, to correct constitutional deficiencies with new legislation.
Trump has vetoed 10 bills during his time in office and threatened to veto many more.
He was successful in killing legislation nine times that enjoyed bipartisan support in both houses because lawmakers could not muster the two-thirds majority needed to override.
In this way, Trump thwarted congressional efforts to curb arms sales to Saudi Arabia and the United Arab Emirates, to require approval from Congress before attacking Iran, to mandate an end to U.S. military support for the Saudi-led war in Yemen, and to block Trump from declaring a national emergency in order to raid military construction funds to build his border wall.
It wasn’t until Jan. 1, with just two days left in the 116th Congress, that the legislative body found the collective will to say “no” to Trump.
No, you can’t arbitrarily withdraw U.S. troops from Afghanistan, Germany, or North Korea. No, you can’t stop the Army from renaming bases honoring Confederate generals. No, you can’t take money Congress authorized for one purpose and spend it on something else. No, you can’t insist on provisions that have nothing to do with defense. No, you can’t.
In the rock-paper-scissors game of checks and balances, Congress can stop the president and the judiciary can stop the president, but so long as the laws it passes are constitutional, neither the president nor the Supreme Court can stop Congress if there is enough bipartisan support for the measure.
When it comes to pardons, the president has the last word.
When it comes to whether laws are constitutional, the Supreme Court has the last word.
But when it comes to waging war, spending money, or setting policy, Congress can have the last word, but only if it can bridge the gulf of a divided government and mount a united front.
Otherwise, the president will find a way to win in the end.
And with Trump under fresh opprobrium for his role in inciting his followers to storm the Capitol, which Senate Majority Leader Mitch McConnell labeled a “failed insurrection,” there was renewed talk this week of another area in which Congress reigns supreme.
Under its power of impeachment, Congress can not only remove the president from office but also bar him from running again or holding any other federal office.
Neither the president nor the Supreme Court has a commensurate authority.
Jamie McIntyre is the Washington Examiner’s senior writer on defense and national security. His morning newsletter, “Jamie McIntyre’s Daily on Defense,” is free and available by email subscription at dailyondefense.com.
