Congress Has More Power Than It Thinks | Lawfare
The upcoming main navigation can be gotten through utilizing the tab key. Any buttons that open a sub navigation can be triggered by the space or enter key.
Search Lawfare
Search
Advanced Search
Michael R. Dreeben
Jacqueline Sanchez
Owen O'Brien-Powers
Meet The Authors
Subscribe to Lawfare
A surpassingly important question in recent separation-of-powers debates is when, if ever, Congress can stand up to reclaim its prerogatives from a president determined to press to the limits of his power and beyond. Recently, a Supreme Court justice and several scholars have expressed skepticism about the legislature’s ability to pull back authority it once delegated to the president. But the assumption that powers once delegated are virtually forever lost deserves critical scrutiny. In fact, Congress has a variety of tools at its disposal to resist executive overreach even when the president can threaten to veto legislation that bucks his will.<br>The debate over Congress’s ability to retrieve delegated powers took place out of the spotlight in Learning Resources, Inc. v. Trump, where the Supreme Court rejected President Trump’s claim to unlimited authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA). In dueling separate opinions, the justices exchanged opposing views on whether a court should weigh Congress’s ability to undo legislation that delegates power to the president when interpreting a statute. Notably, Justice Neil Gorsuch’s concurrence relied on the “retrieval problem” to argue that the Court should hesitate to endorse broad delegations in part because of Congress’s structural disadvantage in reversing delegations.<br>At a time when Congress has ceded power and “subordinated itself to the executive branch,” Justice Gorsuch’s approach seems intuitively appealing because it presents a pathway for courts to rein in an aggressive administration stretching its statutory powers to the breaking point. But the assumptions underlying the retrieval problem overlook the complex reality of Congress’s power and could lead courts into improper, political waters.<br>The retrieval problem posits that, because of Congress’s difficulty in successfully overcoming a presidential veto and retrieving delegated powers, courts should hesitate before broadly interpreting ambiguous delegations of power from Congress to the executive branch. The risk of upholding the executive branch’s action is that Congress could lose its power permanently, even when a majority of legislators want the power back. As Gorsuch put it, “[o]nce this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve.”<br>Gorsuch’s assertion that delegated power is nearly impossible to retrieve gives courts a principled reason to be stingier about reading statutes as broad grants of presidential authority. And discussion of the retrieval problem has already entered public discourse. New York Times journalist and longtime observer of the Court Adam Liptak interpreted Gorsuch’s concurrence to suggest that the Court might “limit presidential power grabs” in future rulings by considering the odds of a presidential veto against Congress’s ability to pass legislation. Others lauded Gorsuch’s concurrence for taking the “pro-Congress” approach. A handful of Republican senators, who had repeatedly voted against giving Trump more power, celebrated Gorsuch’s concurrence for its emphasis on checks and balances and his effort to put “power back in Congress’s hands.”<br>Justice Brett Kavanaugh was not convinced by Gorsuch’s argument. Kavanaugh’s dissent argued that Congress has more power than the retrieval problem assumes: “Congress could … wield its authority over oversight, legislation, confirmations, or appropriations to pressure the president to reduce or eliminate some or all the IEEPA tariffs.” As Kavanaugh saw matters, because Congress has several tools at its disposal to influence policy and the executive branch, “Congress is not a helpless bystander when it comes to the President’s exercise of tariff authority under IEEPA.” To Kavanaugh and others, the retrieval problem does not reflect political realities because Congress has many other established ways to exercise control over the executive branch.<br>Experience confirms Kavanaugh’s intuition and complicates the retrieval problem’s core assumption. A look at how Congress has actually behaved across administrations of both parties reveals a more nuanced picture: one where the veto threat is real but far from the only factor, and one where Congress has repeatedly constrained or reclaimed delegated power through tools the...