Dennis Azvolinsky is a second-year student at the Georgetown University Law Center who served as a summer 2024 law clerk at WLF.
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The Supreme Court’s October Term 2023 was a significant step towards a more perfect constitutional arrangement, where Congress actively checks the Executive’s power. This arrangement, while consistent with what our framers envisioned, may run into a major problem: the two-party system.
Two of the most important decisions from this past term, Trump v. United States and Loper Bright v. Raimondo, have altered the Executive’s power in major ways, albeit in seemingly opposite directions.
On one hand, the holding in Trump granted the President wide immunity from criminal prosecutions, increasing the Executive’s power by decreasing interference by the other branches. Loper Bright, meanwhile, limited the Executive’s power after decades of substantial judicial deference to administrative agencies to interpret statutory ambiguities.
These seemingly conflicting holdings on the Executive’s power can be reconciled through one guiding principle: Congress must set standards for the Executive and hold it accountable for failing to meet those standards. But the Supreme Court did not actually give Congress more power. Rather, the Court simply sent Congress a message: do your job!
One need not look deeply to see that message in the opinions. Trump reaffirmed that Congress may still hold the President accountable through impeachment. Quoting Article II, Section 4, the Court emphasized that “[i]mpeachment is a political process by which Congress can remove a President who has committed ‘Treason, Bribery, or other high Crimes and Misdemeanors.’” As the Court explained, Congress’s impeachment power does not imply that the President can face prosecution for any illegal act. Rather, the authority to try, convict, and remove the President for violating the law lies, untouched, with Congress. Thus, the Court explained how a President can be held accountable for criminal acts, putting the impetus on Congress to do so.
For example, if the President ordered “the Navy’s Seal Team 6 to assassinate a political rival”, a horrifying scenario Justice Sotomayor raised in her dissent, Congress could impeach and remove the President, even if criminal prosecution may be unavailable. While the President may have presumptive immunity, what he does not have is immunity from Congress’s impeachment power.
The Court also signaled that impeachment is not the only tool Congress can use to rein in the President’s abuse of power. Besides acts under the President’s “conclusive and preclusive” constitutional authority, for which he has absolute immunity, the “President sometimes ‘acts pursuant to an express or implied authorization of Congress,’” where he only has presumptive immunity. So Congress can limit the President’s authority through actions showing it does not acquiesce to his actions. Thus, if Congress passes legislation barring military orders to kill American citizens, it would almost certainly alleviate Justice Sotomayor’s concerns.
Loper Bright did something similar by overturning Chevron v. Natural Resources Defense Council, which gave agencies substantial power in resolving statutory ambiguities. Judicial checks were available only if an agency’s interpretation was unreasonable or the statute was unambiguous. This gave agencies a major advantage when litigating statutory interpretation cases. Loper Bright, however, returned to a stricter standard, holding that resolving statutory ambiguity is a job for courts, not agencies.
At first glance, Loper Bright appears to give the Judiciary, not Congress, more power. But the real message was to Congress: make statutes clearer and respond to interpretations when ambiguities are discovered.
Loper Bright continues a trend by the Roberts Court. For example, in West Viriginia v. EPA, the Court formalized the major questions doctrine. Now, clear authorization from Congress is needed for agency actions that have “vast economic and political significance.” So West Virginia does not bar agencies from implementing important economic and political changes. But Congress must explicitly give an agency power if it wants that result.
Notably, the Court decided Loper Bright on Administrative Procedure Act grounds, not separation-of-powers principles. But what’s important is the Court’s trend towards restoring the balance of federal powers.
This view of checks and balances is most famously illustrated in James Madison’s Federalist No. 51, where he wrote that the best way to prevent the concentration of power in one branch is by “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.” The Roberts Court has embraced this vision, pushing Congress to use its “constitutional means,” such as impeachment and passing laws, to “resist encroachments [by] the” Executive.
The message the Court is sending to Congress is clear. The only question is will Congress hear it? Because of our hyper-partisan two-party system, this seems unlikely. The incentives for Congress are not what Madison envisioned. Instead of a system where Congress asserts its institutional objectives, we have a system that is dominated by political parties asserting their political objectives.
The examples above prove the point. It is almost impossible to say that the two impeachments of President Trump were motivated by something other than politics. The impeachments were pursued almost exclusively by Democrats and opposed by most Republicans. The vote to impeach Trump was almost entirely party line, with only five voting against the first set of articles and ten for the second (out of over two hundred thirty members voting).
Besides, the House brought charges knowing that the Senate would not convict. The first impeachment and trial also occurred less than a year before the 2020 election and the second occurred after President Biden took office. This cannot be seen as the ambition checking ambition that Madison envisioned. Rather, it was one party attempting to gain political leverage against another.
Similarly, Congress had ample opportunity to clarify what it meant by “best system of emission reduction” in § 7411(d) of the Clean Air Act during West Virginia’s pendency. Congress, however, sat still while the Environmental Protection Agency read the statute to empower the EPA to force vast changes to the nation’s power grid. While congressional inefficiency may be seen as the cause of this inaction, party politics are certainly a contributing factor. Democrats were content with President Obama’s EPA’s broad interpretation of the statute, then Republicans were fine with President Trump’s EPA’s narrow reading, and then back to the Democrats liking President Biden’s EPA’s broad reading.
But that does not mean the founders missed the potential dangers of political parties. Madison himself argued in Federalist No. 10 that factions are a troublesome feature of any free polity. And President George Washington left office with a warning that political parties may soon “become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people.” Madison and Washington understood that, after seeing political parties in action, they could threaten the nation. Still, Madison knew that parties are inevitable, arguing in Federalist No. 10 that the only practical way to extinguish factions was to extinguish liberty itself. In other words, outlawing political parties is not the answer.
Americans must elect politicians who promise to check the Executive’s power. This includes passing laws and not succumbing to the ever-stronger force of partisan politics. Thus, we should view this recent term as sending a message to not only Congress, but to us.