The article argues that two recent cases involving President Trump — one about firing agency leaders and one about imposing tariffs — reflect a deeper problem: Congress has gradually ceded lawmaking authority to the executive and administrative agencies. This abdication threatens the separation of powers envisioned by the Framers and described in Federalist No. 51. The piece recalls Schechter Poultry Corp. v. United States (1935), where the Supreme Court unanimously struck down an unlawful delegation of legislative power, and suggests the judiciary could again correct executive overreach if it enforces constitutional limits.
When Congress Abdicates: How Courts Can Rein In Presidential Overreach
Illustration: Eddie Marshall | Midjourney
At first glance, Trump v. Slaughter and Learning Resources v. Trump seem to address very different legal questions — one concerns the president's claimed power to dismiss agency heads at will, the other the asserted unilateral power to impose tariffs. But both disputes expose a common problem: the gradual transfer of lawmaking authority away from Congress to the executive branch and administrative agencies, and the resulting strain on the constitutional separation of powers.
Congress’s Retreat and the Rise of Executive Authority
Over decades, Congress has delegated or ceded significant regulatory powers to the executive and to administrative bodies that exercise what a noted jurist once called "quasi-legislative" authority. That accumulation of discretion makes it easier for presidents to act unilaterally, often in ways that test constitutional limits. The problem is not just the actions of any single president; it is the structural gap created when an assertive executive meets a passive legislature.
The Judiciary As The Remaining Check
The Framers divided power among three branches precisely so each could check the others. As James Madison observed in Federalist No. 51, ambition must be made to counteract ambition. Madison also described the courts as "an impenetrable bulwark against every assumption of power in the legislative or executive." When Congress fails to defend its constitutional prerogatives, the judiciary often becomes the last institutional barrier against overreach.
"The constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." — James Madison, Federalist No. 51
Historical Precedent: Schechter Poultry
One of the most instructive examples is Schechter Poultry Corp. v. United States (1935). The Court unanimously struck down the National Industrial Recovery Act (NIRA), which vested sweeping lawmaking power in the executive. Chief Justice Charles Evans Hughes explained that "Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable." That decision, joined by justices across the ideological spectrum, reaffirmed limits on delegation and resisted centralization of government power.
Justice Louis Brandeis later warned White House lawyers that the decision marked an end to unchecked centralization: "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything." The case demonstrates how judicial enforcement of constitutional doctrine can correct an imbalance created in part by congressional surrender of authority.
A Current Judicial Option
The same judicial remedies that curtailed executive aggrandizement in the 1930s remain available. Doctrines like the non-delegation principle, limits on the unitary executive, and careful review of statutory grants of authority can rein in presidential overreach that stems from congressional abdication. Whether the Supreme Court will act to restore those limits depends on its willingness to treat separation-of-powers challenges with the seriousness they deserve.
Bottom line: The tension illustrated by recent cases involving President Trump is less about personalities and more about institutional roles. When Congress relinquishes lawmaking authority, the judiciary may be the only branch equipped to restore constitutional balance — if it chooses to do so.
