Defending the Constitution: the president and the limits of power

Opinion editor’s note: Editorials represent the opinions of the Minnesota Star Tribune Editorial Board, which operates independently from the newsroom.

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Not long ago, many members of Congress, Republicans especially, made a virtue of carrying a copy of the Constitution. These “pocket Constitutions” — mini versions of America’s big idea and ideals — haven’t been seen as much recently in Washington, even though the Trump administration has openly defied statutes in its blitzkrieg dismantling of parts of the federal government.

The list, which seems to expand daily, includes flouting a law meant to ban TikTok in the U.S. unless its Chinese owner sells it — a bipartisan measure that was first initiated during President Donald Trump’s first term.

Now, in his second term, his administration has frozen most foreign aid and moved to shutter the U.S. Agency for International Development (USAID) despite funds for both already approved by Congress. Domestically, the administration tried to temporarily ice nearly $3 trillion in grants and other government spending before chaos (and two court injunctions) caused a retreat.

Similarly, it took judicial action to halt, at least for now, the administration’s attempt to end birthright citizenship, which is granted in the 14th Amendment to the Constitution. Courts may eventually catch up to other legal violations too, like the firing of 17 inspectors general overseeing federal agencies — despite clear legal language stipulating that presidents must give Congress 30 days’ notice and a written “substantive rationale, including detailed and case-specific reasons” before dismissing any of them. Or the firing of prosecutors who worked on cases involving Trump or the Jan. 6 MAGA mob that attacked the Capitol, and the sacking of a Democratic member of the National Labor Relations Board in order to keep it from having a quorum. But overall, the judicial branch, by constitutional design, moves slower, if it moves at all.

Congress, with 535 members, moves more deliberately too. But because Republicans have majorities in both the House and Senate, it has barely challenged Trump’s truncation of these laws, at least as of now.

“I see Congress abdicating its responsibility in our system of separation of powers,” said Kathryn Pearson, a University of Minnesota associate professor of political science whose scholarship often focuses on Congress. “All three branches are supposed to be a check on the other, and I don’t see Congress fulfilling that role.”

From a constitutional law perspective, “it’s clear that President Trump is testing the boundaries of our constitutional separation of powers through these series of actions, and we need to see who, if anyone, will check this assertiveness,” said Jason Marisam, an associate professor at Mitchell Hamline School of Law.

Lawmakers of both parties should lend the legislative branch support amid an executive branch assault, said Charles Reid, a professor at the University of St. Thomas School of Law. “The Constitution envisions separations of powers and envisions a Congress that is always perpetually jealous of its prerogatives,” Reid said. But “what the framers did not understand at the time was ideas like party unity.”

Nowadays, said Marisam, “there aren’t so many institutionalists left in Congress who are going to fight to preserve the congressional prerogative and are more likely to fall in line with the party leader.”

That’s what appears to be happening in Washington. Or not happening, in the case of congressional Republicans, who are offering no challenge to Trump’s reconstruction agenda.

Congress should be holding hearings on some of the executive actions and resisting Trump’s usurpation of their role, said Pearson, who added that “this isn’t happening because Republicans in Congress and President Trump are acting as a team instead of maintaining their separate goals in our system.”

It’s accepted and expected, with a president of the same party in the White House, that congressional Republicans would be supportive. But not supplicant, as they have in so many occasions, including allowing Elon Musk to end a congressionally created and funded program like USAID, which Musk crowed he had “put through the wood chipper.”

Concerns over conflicts of interest with Musk-owned businesses have not been worked through. More fundamentally, Musk “was not elected,” said Pearson. “He is not a Senate-approved agency head; he has not gone through a confirmation process. DOGE [Musk’s ad hoc Department of Government Efficiency] is not a Cabinet agency that has been vetted by the Senate. And so Congress should be holding hearings. What power does he have?”

The opacity optimizes the president’s position, said Marisam. “President Trump is purposely keeping this vague,” he said, adding that “there are many problems simply from a constitutional and legal perspective of who with authority is acting.” This is a legal principle, Marisam said, “but it’s not just a principle for the sake of having it; it fits into all of our governmental principles of accountability and transparency.” (On Thursday, a federal judge temporarily halted the administration’s government-worker buyout plan.)

Beyond matters of the Constitution, though, matters of conscience regarding “wood chipping” USAID should register with Republicans too: Musk, the world’s richest man who’s serving a billionaire president, just gutted a program meant to help the world’s poorest people. If the ethics don’t bother GOP leaders, the efficacy of such an unforced error in the broader geopolitical context of competing with China should. American values can now be cast as callow and shallow as Beijing attempts to portray them. (Moscow applauded too, with former Russian President Dmitry Medvedev calling it a “smart move.”)

Amplifying the international injury is Trump’s musing to “own” Gaza and displace millions of Palestinians, which most of the world, allies and adversaries alike, would correctly consider ethnic cleansing. Predictably but disappointingly, congressional Republicans registered little to no dissent on the legality of Trump’s vision, which the White House did appear to partly walk back after wide international condemnation.

But the fact remains: Not even three weeks into Trump’s second presidency, there are “the contours of a constitutional crisis,” said Reid.

For Pearson, “the consolidation of power in the executive branch, with Congress just standing on the sidelines and not asserting its institutional role, is extremely alarming.”

It’s well past time for Congress to get off those sidelines. While doing so, lawmakers should reach for their neglected pocket Constitutions and read — and more profoundly heed — them.