It's Time for Congress to Take Its Power Back (and Stop Dodging Responsibility)

Greetings from what is technically my week off. Before you ask, I wrote a lot of this before taking some time off, but I also find a lot of this writing almost therapeutic, so some of it is pre-planned and some of it is stuff I write out while I’m supposed to be away from my desk (don’t tell anyone).

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I know a lot of people like to say that we are in a constant constitutional crisis. Depending on the person or the party in power, we are constantly told the Constitution is under attack and we will lose our freedom at any given moment.

I have said the following dozens of times on the air, and I stand by it: The Constitution isn't dying — it's being systematically subverted by the very people sworn to uphold it.

I'm not talking about some abstract legal theory here. I'm talking about a massive constitutional imbalance created by Congress's decades-long abandonment of its core responsibilities. The Constitution is stronger than any one man or any one party, but it can't function when one branch of government refuses to do its job.

Here's what's happening: Congress has voluntarily surrendered so much of its constitutional authority that we're living under a form of government the founders never intended — one where unelected bureaucrats make law, spend money without specific authorization, and operate with virtually no accountability to the people.

The Great Congressional Surrender

Here's what's supposed to happen: Congress makes the laws, the president enforces them, and the courts interpret disputes. Three branches, each jealously guarding their turf, each keeping the others in check. It's not complicated.

But here's what actually happens: Congress writes vague laws, hands them over to unelected bureaucrats, and tells them to "figure out the details." Then they go back to fundraising and Twitter fights while agencies make decisions that affect every aspect of your life — from what your kids learn in school to how much you pay for electricity.

This didn't happen overnight. It's been building for nearly a century, starting with the New Deal's creation of 69 federal agencies between 1933 and 1939. Franklin Roosevelt's administration, facing the Great Depression, established everything from the Securities and Exchange Commission to the National Labor Relations Board. Some served legitimate purposes during a national crisis, but they also established a dangerous precedent: Congress could delegate its constitutional authority to executive agencies.

The Supreme Court initially pushed back hard. But in 1928, in J.W. Hampton v. United States, the Court had already begun softening its position, ruling that Congress could delegate power as long as it provided an "intelligible principle" to guide executive action. Then in 1935, the Court struck down broad delegations of legislative power in Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States.

That "intelligible principle" standard became a constitutional joke. The Supreme Court hasn't overturned legislation on nondelegation grounds since the 1930s — until very recently.

The Power of the Purse: Congress's Greatest Failure

If abandoning lawmaking wasn't bad enough, Congress has also surrendered its most important constitutional responsibility: control over federal spending. The Constitution states clearly that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Every dollar the federal government spends should be specifically authorized by Congress.

Here's the reality: Out of roughly $6 trillion in federal spending, Congress only has meaningful control over about $1.8 trillion. Nearly $4.1 trillion runs on autopilot through "mandatory spending" programs, while another $500 billion goes to service the national debt. Two-thirds of the federal budget operates without annual congressional oversight.

Even worse, that $1.8 trillion in "discretionary" spending gets divvied up behind closed doors by senior leadership and the president through something called 302(a) allocations. There's no transparent debate, no public input — just backroom deals that determine how hundreds of billions of taxpayer dollars get spent.

This represents a complete abandonment of what Massachusetts delegate Elbridge Gerry called the fundamental principle that "the people ought to hold the purse-strings" through their most direct representatives in the House.

Democracy Becomes Bureaucracy

When Congress abdicates its responsibilities, you lose your voice in government. You can call your congressman, vote him out, hold him accountable. But you can't vote out the EPA bureaucrat who decides what your electricity costs or the Department of Education official who shapes your children's curriculum.

This creates what individual members of Congress actually want: plausible deniability. Why take a tough vote on climate policy when you can let the EPA handle it through regulations? Why debate student loan forgiveness when the Department of Education can issue "guidance documents" instead?

The result is government by bureaucrat — officials who answer to no one you elected, operating under rules you never voted for, making decisions that profoundly affect your daily life.

For decades, the Supreme Court made this worse through "Chevron deference," which essentially told federal courts to defer to agency interpretations of vague congressional statutes. Agencies could stretch their authority, knowing courts would likely back them up.

The Tide Finally Turns

But something significant happened on June 28, 2024. In Loper Bright Enterprises v. Raimondo, the Supreme Court finally overruled Chevron deference. The Court also strengthened the "major questions doctrine," requiring clear congressional authorization for agency actions of "vast economic and political significance."

This represents the most important constitutional development in decades. Courts will no longer automatically defer to agency interpretations. Bureaucrats will actually have to point to specific statutory language authorizing their actions. Congress can no longer hide behind vague delegations.

The Path Forward

The solutions must be both structural and bipartisan, because Congress's weakness has been both structural and bipartisan.

First, Congress needs to start writing actual laws again. No more broad delegations to "protect the environment" or "ensure fair competition." If Congress wants the EPA to regulate carbon emissions, they need to pass specific legislation defining the scope and limits. If they want student loan forgiveness, they need to vote on it openly.

Second, Congress must use its oversight powers aggressively. They have the authority to drag agency heads before committees, demand detailed explanations, and cut funding for programs that exceed their statutory authority. They just need the backbone to use these tools.

Third, we need transparency in the appropriations process. Those 302(a) allocations that determine discretionary spending should be debated publicly, not negotiated in leadership offices.

Finally, voters need to hold their representatives accountable for doing their actual jobs. When your congressman tries to dodge a tough issue by saying "that's really an agency matter," remind them that they were elected to make tough decisions, not to pass the buck.

The Constitution Will Survive This

The Constitution has survived civil war, world wars, the Great Depression, and countless political crises. It's stronger than any president, any party, or any temporary political movement. But it can't function when one branch systematically refuses to exercise its constitutional responsibilities.

The separation of powers isn't some dusty constitutional theory. It's the difference between being governed by people you can vote out and being ruled by people you can't even name. It's the difference between laws passed through democratic debate and regulations imposed through bureaucratic fiat.

The founders gave us a system that works when we demand that it work. For too long, we've allowed Congress to shirk its responsibilities while complaining about an unaccountable administrative state of their own creation.

The Supreme Court has started pushing back. Now it's time for voters to do the same. Because the Constitution will endure, but only if we insist that all three branches actually do their jobs.

The imbalance can be fixed. The question is whether we have the will to fix it.