To Defuse the Presidency, Revive Congress and Checks and Balances
April 2, 2025
The overwhelming, mushrooming growth of presidential power in both foreign and domestic affairs, marked by executive aggrandizement and legislative abdication, leaves students of the Constitution begging for a spirited revival of checks and balances, of the sort envisioned by delegates to the Constitutional Convention. In the Framers’ view, the way to contain the presidency and protect against the rise of a knave or a despot was to hedge and trim its authority at every turn and further restrain the exercise of its powers through constitutional checks wielded by Congress and the judiciary.
The Convention’s strict enumeration of executive powers in Article II, a stylistic approach urged by James Madison to “confine and define” the Office of the Presidency, met the moment. Reinforced by checks and balances, then a novelty in the evolution of constitutionalism, and the founding generation’s repudiation of usurpation of power, born of its own dreadful experience under the yoke of British tyranny, the prospects for a limited presidency seemed attainable.
What the Framers could not have anticipated was the decline of Congress. In Federalist No. 51, Madison had observed that, in a republic, “the legislature necessarily predominates.” Rather than creating three co-equal branches, the Framers endowed Congress, not the president, with the most important powers. Indeed, Congress was given primacy. The authority to make laws, ensure their execution in accordance with legislative aims, the powers of oversight and investigation, taxing and spending and, indeed, the lion’s share of authority in foreign affairs and national security, stamped Congress as the nation’s “first branch of government.”
The principal limits on the powers of Congress were to be found in the authorization of the presidential veto and judicial review of the constitutionality of national laws. But the power of removal of both the executive and the judiciary was entrusted to Congress. Neither branch was granted the power to remove members of Congress. The executive and the judicial departments, as Madison noted, were executors of the laws of Congress. They might exercise a negative over the legislative authority, but neither was a substitute for it.
Congress was entrusted with the power of impeachment, the ultimate means of protecting the republic from an errant president. Madison’s remarks in the Convention about the dangers of the presidency – subversion of the republic, usurpation and instigation of revolts – as the principal source of tyranny necessitated the creation of a power for Congress that could prevail in an existential clash with the executive. The Convention’s rationale for vesting the impeachment authority in Congress reflected its confidence in the incentive of members – grounded in their oath of office and political instincts – to defend their constitutional powers from executive acts of usurpation.
Madison placed his faith in the nature of men who sought public office, not in their virtue or goodness, but in their ambition. In Federalist No. 51, he wrote that the “great security against a gradual concentration of the general powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of others.” He added, in words that have become immortal: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
Hannah Arendt, an eminent philosopher in the postwar world and author of The Origins of Totalitarianism, rightly observed that Madison’s expectation – “ambition to counteract ambition” – meant the “ambition to excel and be of ‘significance,’ not the ambition to make a career.” As things have turned out, however, many members of Congress have little ambition to excel, only ambition to make a career. The reluctance of lawmakers to defend their turf in the face of executive aggrandizement, grounded in their fear of assuming unpopular positions or being targeted by the president, either of which would undermine their goal of longevity, betrays the vision of the nation’s founders, who could not have imagined that representatives would sacrifice personal and professional interests to remain in Washington.
When Congress is controlled by members committed to longevity and careerism, it ceases to be the institution that Madison envisioned, one that faithfully performs its responsibilities and checks executive aggrandizement of power, including the vaulting ambitions that corrupt our constitutional system – all in fear of losing their clout and, ultimately, their seats. They may save their careers, but not the Constitution.
-David Adler