Who Will Put the President in His ‘Proper Place’?

Feb. 16, 2025

As the new Administration cuts loose people and programs, an isolated statement tucked far back in the Federalist Papers jumps off the page.

The Founding Fathers had just gone to great lengths to separate and balance power in the new American government.  The first three articles of the proposed Constitution laid out the respective roles of the three branches of government, giving power to each but absolute authority to none.

And yet even after creating this structure, either Hamilton or Madison (it’s unknown which) wrote in Federalist No. 51 that the “several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

That is exactly where we are right now.

The President is brazenly grabbing for power by executive fiat.  And who will check him?  With one party in control of all three branches, this is extra problematic.

An emasculated and dysfunctional Congress has gone missing.  The Supreme Court hardly evokes confidence in the wake of the wide immunity it granted the chief executive last summer.  And the Constitution, as amazing a document as it is, doesn’t hold all the answers.

The distinction between the three branches has held up rather well over the years.  Government has grown immensely but the broad contours of which branch is responsible for what have held.  The checks and balances have functioned as intended, providing both reassurance and pride that we Americans have a system that works.

Not that everything is perfect.  The executive branch has been presuming more and more power – sometimes out of opportunity, sometimes of necessity – largely through Executive Orders that are being used as much or more to make policy as to execute policy.  That’s in part because Congress, so caught up in partisan warfare that it can’t get out of its own way, has been ceding its authority.

Nowhere has this been more evident than at the border, with Trump’s first-term Executive Orders reversed by Biden’s Executive Orders that in turn have been reversed by Trump’s most recent Executive Orders.  In the middle of all this flip-flopping, Congress passed on a golden opportunity to steady the ship.

But the border is just a small part of what we are witnessing now.  President Trump is brazenly defying every norm and convention, beginning with taking a stranglehold on spending.

No less than Justice Clarence Thomas has opined, “By the time of the Constitutional Convention, the principle of legislative supremacy over fiscal matters engendered little debate and created no disagreement.”  The Constitution enumerates that Congress is responsible for raising revenues, paying the debts, and providing for the common defense and general welfare.

The Founding Fathers did not explicitly spell out that the President is required to spend what Congress authorizes.  The line-item veto Trump and his henchmen are exercising is neither expressly permitted, nor for that matter is it expressly forbidden.

What the Constitution does say is this.  In respect to Congress, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  In respect to the President: “He shall take care that the Laws be faithfully executed.”  One could argue the framers believed they had adequately closed the loop.

But President Nixon thought he saw enough ambiguity to refuse in the early 1970s to spend money on social programs approved by Congress.  In response, the legislative branch adopted the Impoundment Control Act of 1974 that says the executive branch may seek to temporarily defer some spending or rescind it altogether if Congress approves.  Otherwise, the impoundment law says the money must be disbursed.

Congress was doing exactly what the Founding Fathers expounded.  One constituent part keeping another in its proper place.  But Trump is defiant, claiming the law unconstitutional.

In the face of his actions, the current Congress is deafeningly quiet.  The President has just unilaterally usurped legislative prerogatives.  They should be howling.  Republicans just as much as Democrats.  Not just about the substance of his actions, but about his theft of their authority.  Instead, they are quiet as lambs.

Why are the Democrats so quiescent?  That’s the question everyone is asking.  Why are the Republicans silent?  Because Trump is unilaterally doing with a sweep of the pen what they could not collectively do in proper democratic fashion.

That leaves the third branch in the triumvirate, the Supreme Court being ultimate arbiter.  Alarmingly, the court used the doctrine at issue here – the separation of powers – to explain in the immunity ruling why it could not and would not adjudicate what Trump had done during the conduct of his official duties.

The same ruling holds, however, another sobering clue as to what the court might do in response to the current constitutional crisis.  Next: More on where this might end.