Congress Remains the Heart of Our Constitutional System
Our national legislature is a vehicle for self-governance and forging unum from e pluribus.
Congress is a frustrating and sometimes ridiculous institution. Yet it is the heart of our constitutional system. Not the presidency. Not the judiciary.
I admit this is not an easy argument to make these days.
Every time any of us go online or turn on a news program or read about Capitol Hill, we see toxic behavior among people who are supposed to be adults and sworn officers of the Constitution. We also see relentless partisanship and gratuitous insults.
And then there is the appearance of what’s often deemed “gridlock.” There’s a national problem or important policy matter that needs to be worked out, but Congress does not do anything to improve it.
Everyone knows, for example, that our immigration, asylum, and refugee policies need to be overhauled. Yet decades have passed since the last grand bargain was struck, and legislators from both parties seem more interested in using the issues to campaign on rather than cutting a deal to improve policy.
And there also is the federal budget. It is a mess. America had a $1.8 trillion deficit in 2025, according to the Congressional Budget Office. That amounts to about 6 percent of gross national product (the sum of the value of all goods and services produced). Such huge deficits previously have occurred only during a war or economic meltdown. Congress, meanwhile, shows no appetite for tackling the imbalance of revenues and spending and instead has more often than not failed to pass budgets and spending bills in a timely manner.
These are just two of the many disappointments we’ve experienced in congressional policymaking.
Quitting on the First Branch
Certainly, the American public is not especially impressed by Congress. The latest Gallup poll shows a mere 15 percent of those surveyed approved of “the way Congress is handling its job.” Some 79 percent of respondents disapproved of the national legislature’s performance. This is no mere blip; public approval of Congress has hovered between 10 and 30 percent for 20 years.
As public faith in Congress has gone down, more and more Americans have shifted their faith toward the presidency and the courts. When voters feel upset about something, they increasingly demand the president do something or hope the Supreme Court will issue a ruling to decide a matter.
This shift in expectations is not a recent development. It has been building for decades. The public is not alone in thinking it should place its chips on the president or the courts to effect change. There’s a whole ecosystem of interest groups and private actors whose entire operations are geared to co-opt the second and third branches of government to achieve their policy goals.
And more and more we see senators and members of the House of Representatives behave as if they believed that real change should be made through executive or judicial action. Some legislators go so far as to behave as if they are mere employees of the White House. Not long ago, both chambers appeared ready to pass bipartisan legislation that would increase sanctions on Russia to punish it for invading Ukraine and for other misbehavior. The bill still has not been voted on. Why? Because Republican leaders in Congress reportedly were unsure if President Donald J. Trump would sign it. They decided to wait for someone in the White House to say it was acceptable to pass the bill.
And shall we speak of instances where Congress has refused to legislate on issues, allowing the federal courts to decide them instead?
In both instances the very idea of representative democracy has been lost. Decisions properly made by a legislature elected by the public are being deferred or delegated to a single person or a small group of unelected officials.
So, yes, it is absolutely true that Congress as an institution has grown weaker and the power it has relinquished has flowed to the executive and judicial branches.
Congress Is Not Dead Yet
Yet the reports of gridlock and the demise of Congress are vastly overstated. To a degree, the media fuels the misperception that Congress is less than the heart of our constitutional system.
Over the decades, newspapers and news programs have allotted more and more reporters to the presidency. Every time a president says anything, there are numerous news stories about it. And I use that word story purposely. The days have long passed since reporting on the presidency was mostly a dry recitation of the facts: “President Warren G. Harding met with congressional leaders to discuss . . .” These days, media stories place the president at the center of just about every political and policy story. Even when Congress writes a 1,500-page spending bill, it is inevitably described as the work of the president.
One negative effect of this media coverage is that it inflates the public’s expectations for what a president can do, which also inflates senators’ and congressmen’s expectations of what the president should do. Unsurprisingly, most modern presidents end their terms with lower approval ratings than when they entered the pretty building at 1600 Pennsylvania Avenue. The public is usually disappointed by presidents because their hopes were inflated far beyond what our constitutional system enables a president to achieve.
Meanwhile, what media coverage of Congress exists focuses heavily on conflict. “If it bleeds, it reads” is the old saying in journalism; hence, lots of congressional coverage focuses on disagreements among legislators. Coverage often is framed in terms of fights: Democrats versus Republicans, Majority Leader John Thune versus Minority Leader Chuck Schumer, and so forth. Bomb throwing and outrageous personalities get ink; diligent senators and representatives are virtually unknown to the average American and even most politics junkies.
Hence, few reporters dare to turn in feel-good stories to their editors with any regularity. The assumption is that stories about bipartisan agreement in Congress and competent policymaking will not get many clicks online. Such “good news” pieces are run infrequently—they are “man bites dog” stories that sometimes draw eyeballs.
Now, contrary to the widespread impression, Congress does get things done.
Consider the 118th Congress (2023–24), which was racked with partisanship. Democrats controlled the Senate; Republicans held the House. There were fights over who got to be Speaker of the House, and Kevin McCarthy was booted from the position. It was fractious.
Nonetheless, it still enacted around 275 laws comprising 4,500 pages, according to a report by my colleague Philip Wallach.
Some of the laws were not substantive, like the bill to “designate the facility of the United States Postal Service located at 119 Main Street in Plains, Georgia, as the ‘Jimmy and Rosalynn Carter Post Office.’”
But most of the laws were substantive, such as the DETECT Fentanyl and Xylazine Act of 2024, the Supporting America’s Children and Families Act, and the BOLD Infrastructure for Alzheimer’s Reauthorization Act of 2024, to cite just three.
A central product of our constitutional system of self-governance is lawmaking, and Congress still is doing that.
The US Constitution Keeps Congress Preeminent
Contrary to what you may have heard in civics classes, the founders did not create three equal branches of government. The US Constitution made Congress supreme by assigning it nearly every federal governmental power.
Article I, Section 8 is a list of all the things the federal government is empowered to do, should Congress so choose.
The Congress shall have Power
To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads; . . .
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Article I is way longer than Articles II and III, which created the executive branch and the judiciary.
The Constitution’s first article assigns the president to be “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” He also may receive foreign ambassadors and sign treaties, so long as the Senate agrees to the latter. The executive can nominate people to work for him, but again he needs the Senate to approve his choices. And he can veto bills, which Congress can override. Those are his main authorities. His power to make policy flows from his ability to interpret the laws Congress writes.
And, by the way, Congress can impeach a president; the president cannot impeach members of Congress.
Earlier I mentioned that the public almost always sours on a president. Now you can see why. Only Congress can write laws. Presidents can issue executive orders, produce memoranda, and do many other things, but they cannot write laws. That fact necessarily limits what an executive can achieve.
And Article III? It is even more circumscribed. The Constitution mandates the creation of a Supreme Court and assigns it certain types of legal disputes.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
That is it.
All the federal courts that currently exist, such as the district and circuit courts, were created by Congress. Which, if it felt like it, could abolish them. The courts, just like the executive branch, must request money from Congress each year.
Reviewing the nation’s charter makes all the talk of an imperial presidency or imperial judiciary seem strange and more than a little hyperbolic. Congress has immense constitutional authority, and no amount of executive or judicial usurpation can obliterate that fact.
Why Congress Should Lead: E Pluribus Unum
Certainly, Congress has delegated many of its policymaking authorities to the executive and judicial branches. Sometimes this has been done through statute; sometimes it has been done by legislative inaction.
Partisan calculations can be blamed in some instances for the abrogation of authority. But having watched Congress up close for more than two decades, I can say that something else is at work. Many legislators have lost the concept of what they are supposed to do, which is to be lawmakers. Why that has happened is beyond the scope of this essay, but it seems inarguable.
And that is a very big problem, but one easily remedied if elected officials and we voters reacquaint ourselves with a central insight by James Madison, who had a key role in the creation of our Constitution.
Madison centered his thinking about federal governance on a basic fact: America was a place populated by a heterogeneous people scattered all over a wide expanse of land. They had different religious beliefs, different levels of wealth and ability to acquire property, and very different interests. A small Pennsylvania farmer’s attitude toward trade, for example, often was not the same as a New England merchant.
Human beings, Madison understood, have the capacity to reason, but they also are subject to passions and irrationality. Humans also tend to form groups that will try to influence or seize control of government to advance their interests, frequently at the cost of others’ liberties.
How was liberty to be protected in that environment? How could people be protected from one another and the government? How was a nation to be forged from all these diverse people?
Madison persuaded his fellow founders that the answer was to establish a system of limited government that had at its heart a legislature that would represent all the various interests. The government would be able to do little unless these individual factions, assembled in Congress, could strike a bargain.
And when the various factions in Congress did find common ground, they would produce unum out of e pluribus. They would produce a national policy and a consensus around it that would endure for years, maybe even decades.
Of course, when you have lots of differing voices, it will frequently not be possible to strike a bargain. Maybe not for years or decades, or even ever. Although that can be disappointing, Madison saw this as a feature, not a bug, of our system.
So should we.
Again, there is a great diversity of opinion on public matters: What’s a problem? What’s not a problem? Is this a matter for federal involvement? If it is, can the federal government actually make a positive difference?
There inevitably will be differences of opinion in our enormous, polyglot nation—more so today than when Madison was writing and the nation was much, much smaller and homogeneous.
That is why it is a mistake for either us or our senators and representatives to think, “Well, Congress failed to solve this matter; therefore, we need the president or the courts to impose a policy.” No one person can possibly represent a nation of 330 million people.
And certainly the courts are ill-suited to that purpose. They decide matters on the facts of cases, legal procedure, and case law. Matters central to the lives of citizens, like personal values and preferences, play little if any part in the judicial decision-making process.
So, yes, Congress today is weaker than it used to be and needs much reform to enable it to meet the demands of the 21st century. Nonetheless, it remains and should always be the heart of our constitutional system.
Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute and edits AEI’s UnderstandingCongress.org. He is the coeditor of Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform (University of Chicago Press, 2020).
Dr. Kosar,
Your defense of Congress as the constitutional heart of the system is both necessary and refreshing. The distinction you draw between media-inflated presidential expectation and Article I authority is particularly important in an era that treats initiative as synonymous with leadership.
I am curious, however, whether the decline you describe is principally cultural or structural. Delegations of conditional authority, continuing resolutions, and broad statutory frameworks often appear individually defensible. Yet taken together they seem to relocate the decisive political moment away from recurring legislative choice and toward executive activation and judicial review.
Formally, Congress remains preeminent. Functionally, one might ask whether operational authority has migrated in ways that are self-reinforcing.
Do you see the present weakness as primarily a failure of will — something recoverable through civic and institutional reform — or as a structural equilibrium produced by the scale and speed of modern governance?
— CIVIS AMERICANUS
Great piece, Kevin.
An idea that you thread throughout that I think merits (very much so) more unpacking and problem-solving: the cultural faults in and around Congress, and the political process more generally. That, as opposed to alleged faults in "productivity," i.e., "Congress doesn't do anything." As you show, Congress does indeed do things.
But what I find more compelling are these instances you cite of members of the public expressly wanting Congress *not* to do things. To, instead, seek policy hacks through the executive and judiciary. You note an activist angle to this: "There’s a whole ecosystem of interest groups and private actors whose entire operations are geared to co-opt the second and third branches of government to achieve their policy goals." You note a media angle to this: "These days, media stories place the president at the center of just about every political and policy story. Even when Congress writes a 1,500-page spending bill, it is inevitably described as the work of the president." You note even a congressional angle itself to this: "[M]ore and more we see senators and members of the House of Representatives behave as if they believed that real change should be made through executive or judicial action. Some legislators go so far as to behave as if they are mere employees of the White House."
One could go even further. I've joked about the presidential campaign angle, of surrogates at least as far back as Charlton Heston in 2000 calling that year's election "the most important in our history" or some such — this in a time when America had vanquished communism, was at peace, economically dominant, at the apotheosis of soft power, etc. There's a more tangible angle with which we're both familiar, of congressional primary politics — and whether one wants to call the problem structural or organizational (i.e., nothing is stopping would-be candidates or current electeds interested in bargaining and compromising, instead of bomb-throwing, from running/ forming factions), the problem itself exists and is substantial. The way that party platforms are framed every four years indicate that the presidency is a hyper-ideological office that drives policymaking, and Congress's role is to reflexively support or oppose it. (Perhaps we do need a 29th Amendment! https://www.thenewatlantis.com/publications/how-congress-was-saved)
An "et cetera" might be appropriate here; a full accounting of the "angles" could result in a shape more faceted than a cut diamond.
Together, we live in an almost horrifyingly misguided "representative democracy," whose cultural energies at the cohort level (media, activist, campaign, voter, et al) are all directed toward making the presidency and federal courts the only relevant entities in all politics — to the exclusion not just of Congress, but of states and localities, as well, in their roles as part of a federalist system. I would take issue with any rebuttal that claims all this is bellyaching over "vibes" — it underrates the relevance of such vibes to setting the parameters for political activity and outcomes. The existential and increasingly apocalyptic politics of the presidency are directly upstream our current political moment.
("How to address this" is 10,000 words longer. I'm concerned that too much of the polity now sees politics as a process of one "side" crushing the other "side" by any means necessary for it to be possible. But it's a part of the story, the "cultural" part, that I'm eager to see people trying to define and address, as you begin to in this post.)