Meg Mott, Ph.D. is professor emerita of Marlboro College and Emerson College and describes herself as a Constitution wrangler.
PUTNEY-Is the Constitution in crisis? If you listen to Democrats, the president is exceeding his authority. All these executive orders, all these firings and spending freezes! How can this be part of the plan?
But if we look at Article II of the Constitution, the source of all that authority, you'll see that the president has enormous decision-making powers over the Executive Branch.
Section 2 of Article II states the "President shall be Commander in Chief of the Army and Navy [...] and of the Militia of the several states, when called into the actual service of the United States." That means the president can remove generals, can end diversity, equity, and inclusion programs within the military, and can call in the National Guard to police the southern border.
In Section 3, the president is given the authority to "take Care that the Laws be faithfully executed," which would support some of the massive overhauls at the Department of Justice and the FBI.
And then there is the pardon power, "to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
President Biden and President Trump may have each stretched the norms of the pardon power beyond anything we had previously seen, but that doesn't necessarily mean their actions were unconstitutional, even if they were imprudent.
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Republicans make similar claims that the Constitution is in crisis. It's not the place of the judiciary, tweeted the vice president, to tell the president what he can and cannot do. The president was elected, he argues, while the courts have no democratic legitimacy.
But if we look at Article III of the Constitution, the section that lays out the powers of the federal judiciary, we see that "the judicial Power shall extend to all Cases, in Law and Equity arising under this Constitution," followed by a lengthy list of the types of controversies, such as those "to which the United States shall be a Party."
Since he took office, many of Trump's executive orders have been stalled because a federal judge was persuaded by the plaintiffs' argument.
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All of this suggests that rumors of the Constitution's demise are vastly overstated. When Article II powers frighten Democrats and Article III powers anger Republicans, that's pretty good evidence that the Constitution is working.
But these two articles are only a part of the equation. For over 20 years, the first branch, Congress, has been irresponsibly absent. Let's see what the Constitution says about their powers.
Article I, Section 8 gives Congress the authority "to lay and collect taxes," "to borrow money," "to regulate commerce," as well as the power "to declare War," "to raise and support Armies," and "to make Rules for the Government and Regulation of land and naval Forces."
The end of this 18-point list of powers includes the capacious "necessary and proper" clause that gives Congress the authority to do whatever it needs to achieve these mighty goals.
Congress is also charged with overseeing federal agencies, for making sure there is no fraud, waste, or abuse. Sadly, this essential job has fallen off the to-do list.
The Department of Justice was last authorized in 2005, reports Brendan Buck in a recent op-ed in The New York Times. According to Buck, who worked for two speakers of the House, "Committee chairs with jurisdiction over specific agencies don't even bother producing regular authorizing laws."
Unfortunately, when Congress doesn't do its job, presidents jump into the void, ruling by executive orders. That sets up the current dynamic of executive actions countered with judicial constraints, leading to unnecessary squabbles between the courts and the president.
Had Congress fulfilled its Article I obligations, many of the problems we now face might have been fixed - immigration policy being the most obvious.
An absence of Article I action leads to Article II shenanigans, which leads to the sprinkler system created by Article III to calm everyone down.
Yes, the country can persist with an overly exuberant executive and the cold shower of the judiciary, but that doesn't give us a functional government. For that, we need the first branch of government to fulfill its primary function: to govern through good-faith deliberation and debate, not slavish adherence to their political party.
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The good news is that the madness and mayhem of the moment may have finally awakened Congress.
Senators and representatives across the political spectrum are hearing from frantic constituents who have lost their jobs or whose family members have lost their jobs because of a Trump executive order. They are hearing from farmers who purchased a solar display with the expectation that they would receive a clean energy subsidy and whose migrant labor has disappeared overnight. They are hearing about drastic changes at the FBI.
The Senate Committee on the Judiciary, for instance, oversees the Department of Justice. They can monitor the effects of recent shake-ups at the FBI and question the efficacies of the new policies.
I would love to know what the Senators on that committee are discovering about the proposed reforms, some of which might be justified, and some of which might be destructive. They are the ones who have the authority of oversight - not the Department of Government Efficiency (DOGE).
So if you're concerned that we're living in through a Constitutional crisis, talk to our Senators and Representative. Ask them about their committee work and what they are doing about authorizations. (Sen. Peter Welch, for instance, has put Trump's tariffs before the Finance Committee; a good example of Congress being Congress.)
If they tell you they are powerless because they are out of power, tell them to work with Republicans on their committees. There may be good reasons for some of these reforms, but better ways to implement them.
Let them know that the Constitution gives them ample authority - far more than the President - if only they can work together.
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