The great security against a gradual concentration of the several 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 the others. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.—James Madison, Federalist 51

No one should think that we are going to be satisfied with an even smaller package that leaves people behind or refuses to tackle critical issues like climate change. That’s why it is now incumbent on President Biden to keep his promise to us and to the American people by using the ultimate tool in his toolbox of executive action in every arena immediately.—Pramila Jayapal, chair, House Progressive Caucus, comments to reporters after the Congress’s failure to pass the Build Back Better legislation, December 21, 2021

Dear Speaker Johnson, Simply pass every executive order President Trump has signed, and you will go down as the greatest Speaker in American history.—Lauren Boebert, X, February 17, 2025

Donald Trump’s ascent and return to the White House has laid bare the disease of presidentialism—an executive office imbued with immense power and partisan ambition. Trump’s two presidencies and his hold on the Republican Party follow developments nearly a century in the making: the rise of executive-centered partisanship. As the quotes of Representatives Pramila Jayapal and Lauren Boebert suggest, both Democrats and Republicans depend on presidential candidates and presidents to pronounce party doctrine, raise campaign funds, campaign on behalf of other partisans, mobilize grassroots support, and advance party programs through administrative action and court appointments. Current presidential partisanship has degraded congressional members’ pride of place. They ignore Madison’s prescription: that institutional loyalties would be tied to the “constitutional rights of the place,” not to the president or to the president’s party.

Wither Institutional Loyalties

In the original understanding of constitutional government in the United States, it was Congress, not the president, that was supposed to hear and respond promptly to the voices of the American people. Congress is responsible for the essential task of sustaining the rule of law—the foundation of a constitutional democracy. David Mayhew, one of the leading scholars on Congress, put it best: “Congress through its operations through history has probably helped legitimize—and keep legitimized—the U.S. regime out there among the public.”¹ 

The modern presidency, which had been developing since the Progressive Era, was consolidated and ratified during the protracted reign of Franklin Roosevelt, with profound consequences: the president, rather than Congress or political parties, became the focus of popular rule. The modern presidency also transformed the American party system—from localized patronage to national programmatic parties.

Congress is responsible for the essential task of sustaining the rule of law—the foundation of a constitutional democracy. 

Congress was complicit. Presidents such as Roosevelt, Lyndon Johnson, Richard Nixon, and Ronald Reagan embellished the rhetorical and administrative powers of the modern executive office, but most of the tools of the White House Office and the Executive Office of the President were established by congressional legislation. More broadly, even though the Supreme Court ruled in 1935 that Congress could not delegate legislation to the executive branch, Congress continued to do so.² Most troubling, Congress appears to have forfeited the all-important authority to declare war. Since World War II, the United States has been engaged in hot or cold bellicosity without Congress granting constitutional authority to these engagements. Failing to learn the lessons of the Gulf of Tonkin Resolution of 1964, Congress enacted the Iraq War Resolution in 2002, delegating to the president the authority to decide when and how to deploy American troops. Moreover, the War on Terror established “homeland security” as a new national government responsibility, extending the presidential power exercised in foreign affairs to domestic policy, especially concerning immigration.

While power shifted from Congress to the president across the 20th century, that shift was not propelled by partisanship. For a time, the principles and institutional arrangements of the executive-centered administrative state were dedicated to “neutral competence.” Congress helped maintain this commitment to competence, especially through the 1946 Legislative Reorganization Act. This act equipped Congress to oversee the modern administrative state by creating a committee system to engage in “continuous watchfulness” of departments and agencies. Until the 1980s, institutional loyalties remained strong in Congress and were further strengthened in the aftermath of Vietnam and Watergate.

Until the 1980s, institutional loyalties remained strong in Congress and were further strengthened in the aftermath of Vietnam and Watergate.

However, the “textbook Congress” of the mid-20th century was a fragile system. Congress was shifting its focus away from lawmaking and toward participating in the details of administration. Congress’s power to hold the modern executive accountable relied on a “legislative veto”—by one house of Congress, both houses of Congress, or even one or more committee votes. Congressional resolutions revoking executive actions were not presented to the president for signature or veto. Beginning with the Executive Reorganization Act of 1939, the organic statute of the modern presidency that created the White House Office and the Executive Office of the President, the legislative veto was embedded in more than 200 statutes. The Supreme Court found this administrative bargain unconstitutional in 1983, violating the so-called Presentment Clause: both houses of Congress now needed to pass a law (or revoke a law) and “present it” to the president for signature.

With Congress further weakened, the “Reagan Revolution” reopened partisan and constitutional conflicts that were seemingly settled by the New Deal. Each party in Congress either aligned with or against the president—the textbook definition of executive-centered partisanship. Partisan polarization was accentuated by contention over social and cultural issues—battles about what it means to be an American, so evident in conflicts regarding patriotism, civil rights, law and order, and immigration. These culture wars were agitated by social movements that have forged alliances with presidents since the 1960s.

With Congress further weakened, the “Reagan Revolution” reopened partisan and constitutional conflicts that were seemingly settled by the New Deal. 

Indeed, Congress accelerated this tribalism by further dismantling the institutional foundation on which legislative oversight was based. As House Speaker from 1995 to 1999, Newt Gingrich consolidated the Speaker’s power, which reduced the power of senior committee chairs, who had often acted independently. When Democrats came into power in 2005, they kept most of these procedural changes, giving a bipartisan blessing to partisanship. Opportunities for compromise were further short-circuited by frequent episodes of divided government in which the use of the filibuster turned opportunities for compromise into intractable dead-ends. Divided government made partisans especially dependent on presidents to advance their causes.

Moreover, executive-centered partisanship has encouraged Congress to unleash ad hominem attacks on presidents rather than develop alternative programs. There has been a growing trend of “negative partisanship,” whereby party differences are expressed through mutual antipathy between Democrats and Republicans, especially toward the president.³ The animus for rabid GOP partisanship during the Obama and Biden administrations was contempt for the Democratic president; by the same token, the animating factor in mobilizing Democrats and activists during Trump’s presidency has been their hatred of the Republican president.

What Can Be Done?

Trump has brought to the surface major and long-festering constitutional problems. The merging of executive prerogative and partisan polarization has encouraged partisans to support their own president’s incursions into legislative prerogatives. Tribal Democrats and Republicans in Congress, state legislatures, social movements, and the electorate expect presidents of their party to advance partisan objectives. Moreover, Americans are so divided that any constitutional amendment or law that would curb executive power is likely to be dismissed as a partisan gambit. Put simply, half the country hates the president while the whole nation accepts, indeed embraces, presidential dominion.

Put simply, half the country hates the president while the whole nation accepts, indeed embraces, presidential dominion.

But something positive might also have come from President Trump’s tumultuous reign and bombastic disregard of institutions. He might arouse renewed interest in what James Madison termed the “successive filtrations” of American constitutional government—as well as a new appreciation for political parties as collective organizations with a past and future separate from the president. That shift could help inoculate against the threat of popular demagogues who would, as Alexander Hamilton put it, “flatter [the people’s] prejudices to betray their interests.”

Now might be the time, then, for reforms that would revive Congress as a co-equal branch of government, as the guardian of the rule of law. Such a process would not merely seek to restore the post-Watergate reforms that focused on congressional administrative oversight to curb the “imperial” presidency. The Congressional Budget and Impoundment Control Act, for instance, established new House and Senate committees tasked with fiscal responsibility but also established a reconciliation process allowing presidents to circumvent congressional deliberation when enacting signature partisan programs.

Now might be the time, then, for reforms that would revive Congress as a co-equal branch of government, as the guardian of the rule of law.

I propose more attention to “thinking institutionally.”⁴  How can partisan loyalties be made more collective and less presidency-centered? How can the president and Congress reengage in ways that buttress each institution’s principal constitutional responsibility? Unless Americans can be disenthralled from the false hope that a single individual, even with the tools of mass communication and social media, can truly serve as the sole steward of the public welfare, the prospect of restoring constitutional norms and institutions of the American republic will be a chimera.

Endnotes

Milkis is the Miller Center’s White Burkett Miller Professor of Governance and Foreign Affairs and University of Virginia professor of politics.

1.

David Mayhew, The Imprint of Congress (New Haven, CT: Yale University Press), 7.

2.

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

3.

Alan Abromowitz and Steven W. Webster. “The Rise of Negative Partisanship and the Nationalization of U.S. Election in the 21st Century: Why Americans Dislike Parties but Behave Like Rabid Partisans,” Electoral Studies 41 (March 2016): 12–22.

4.

See Hugh Heclo, On Thinking Institutionally (Oxford: Oxford University Press, 2008).