Checking A Presidential Bully
[This is a guest blog from a friend and colleague, Abner S. Greene, who is the Leonard F. Manning Professor at Fordham Law School and has been following the constitutional separation-of-powers issues at the heart of many of the current cases involving the scope of President Trump’s powers for many years.]
Donald Trump’s aggressive use of executive power in his second term threatens to upset the balance of power between President and Congress, and although courts have pushed back against Trump’s excesses,[i] up-front hurdles and back-end limits render courts an imperfect check. In this essay I will describe an argument I made 30 years ago about the problem of expanded presidential power, explain the hurdles facing my suggestions for a better balance of executive-legislative power, discuss the limits of congressional power to check an unhinged President, and outline some difficulties with relying on courts to save the day.
In 1994, I published a law review article called “Checks and Balances in an Era of Presidential Lawmaking.”[ii] I examined the records of the 1787 constitutional convention and looked closely at the Federalist Papers. From these materials, I concluded that “the framers were overwhelmingly concerned with either political branch aggrandizing its own power without sufficient checks.  To the extent that there is any ‘original understanding’ of the division of power between the President and Congress, it is that both are to be feared, neither is to be trusted, and if either one grows too strong we might be in trouble.”[iii]
The article than zoomed forward to the post-New Deal era, where we have seen an enormous expansion of presidential power, sometimes from congressional delegations of power but other times without clear constitutional or statutory authorization. Some of these presidential power-grabs are increases in foreign affairs or war power (e.g., attacking foreign nations without congressional authorization[iv]), while others are exercises of domestic policymaking without congressional approval, for example, dismantling a cabinet department, which one would think needs a statutory basis.[v] In part to provoke discussion, I referred to such domestic policymaking actions – which seem to have the force of law – as lawmaking. Understanding modern presidential power assertions in this way helps us see how far things have come since 1787.
I then examined several ways in which we might bring the Congress-President relationship back into the kind of balance the framers envisioned. One angle was to support congressionally created independent agencies, where the heads may not be fired by the President except for good cause. But in the intervening 30 years, the Supreme Court has increasingly (and incorrectly)[vi] cut back on Congress’ power to create such agencies, asserting that they improperly take executive power from the President.[vii] Another angle was to argue for congressional power to act through bicameralism (i.e., majority support in both houses of Congress) but not presentment (i.e., without need to present a Bill to the President for his approval and signature), in situations where the House and Senate deem a presidentially supported regulation beyond the scope of statutory delegation.[viii] This would involve overruling INS v. Chadha,[ix] which nixed such a “legislative veto”[x] for not following proper Article I, section 7 process,[xi] and although I still support this move as a proper translation of how the framers would have wanted balanced power in today’s world, I recognize that the U.S. Supreme Court is unlikely to overrule Chadha.[xii]
Although Chadha has been mostly important for taking away unilateral congressional power to reject administrative regulations, we should appreciate that it also stands in the way of what could be an effective congressional check on Trump. Congress has limited power to respond to a President who behaves as a bully by issuing commands without authority. It can hold hearings. It can negotiate with the President over whether to amend or repeal extant legislation, and it can similarly negotiate with him about appropriations moving forward.[xiii] Sometimes – rarely – it will have veto-proof majorities to insist on its priorities. But what it cannot do is respond by itself to presidential orders that appear to be unauthorized. This is sometimes misunderstood, as in when we hear someone say “Congress is feckless! It should do something about Trump! Where are those civic-minded Republicans?” Maybe the person saying this is talking about desired speech acts from members of Congress, or hearings, but my sense is that people are sometimes calling for Congress to act, as a body, to push back against Trump. But Congress has no power to act – with legal consequences – by itself; the Chadha decision forbids this kind of action.[xiv]
So other than whatever power the press and the people can muster up,[xv] we are left with the courts. But there are (at least) four hurdles here. First, Trump forces others to find a lawyer and, unless one can find pro bono counsel, to pay the lawyer. Second, the time Trump has forced on others is unrecoverable, and the attorney’s fees are as well, since we live in a country with a strong presumption against attorney’s fees shifting. Even if one wins an easy case, the money spent on the lawyer is gone. Third, litigation takes time, even in the best of cases, and even when Federal District Courts have ruled against Trump, circuit courts and the Supreme Court have sometimes stayed the District Court order, with a metric that, although (somewhat) clearly stated,[xvi] is hard to apply consistently. Fourth, is Trump obeying court orders against him? In some cases it seems he is not.[xvii] Do courts have adequate powers to punish and deter presidential disobedience of their orders? Do Trump and his agents fear jail time for contempt of court, or monetary fines?[xviii] And consider that there is a proposal on the table in Congress to limit the power of courts to hold the executive in contempt.[xix]
We have come a long way from a framing generation that sought to provide a structure in which legislative and executive power would balance each other out, with courts as backstops. Presidential lawmaking, as I have dubbed it, precedes Trump, but the aggressive use of often unauthorized power is something that Trump, shameless as ever, appears to proudly own. Although Congress and the courts have authority to face down a presidential bully, these bodies must be willing to take what is sometimes courageous action, in the face of legal limits and practical hurdles. We will see in the coming weeks and months whether the Constitution – with its “constant aim [of] divid[ing] and arrang[ing] the several offices in such a manner as that each may be a check on the other”[xx] –provides sufficient counterbalances against a President acting with disregard for constitutional structure.
[i] Below is a sampling of Federal District Court orders against Trump that have not been stayed or reversed on appeal. See, e.g., Wilmer Cutler Pickering Hale and Dorr LLP v. Executive Office of the President (executive order targeted at law firm; D. D.C. May 27, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.278933/gov.uscourts.dcd.278933.110.0_4.pdf; D.V.D. v. U.S. Dep’t of Homeland Sec. (deportation; D. Mass. May 23, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad
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