The Powers of the Senate 

It’s an increasingly common refrain that Congress has surrendered its powers in the face of the executive. The U.S. Senate comes in for particular criticism in this regard. The world’s greatest deliberative body is supposedly supine in the face of a hostile president.  

Recently the New York Times interviewed three retired or retiring senators—Tina Smith (D-MN), Joe Manchin (D-WV), and Jeff Flake (R-AZ)—who described the Senate as “broken,” in “retreat,” or undertaking an “abdication.” The interview is a good example of how conversations about the powers of the Senate often misapprehend them, substituting policy disputes for questions of constitutional structure. Smith, it seems, thinks the Senate is broken because it won’t pass radical legislation, like Medicare for All. Manchin—to the surprise of no one who has worked with him in the Senate—comes nowhere near a coherent view of the Senate’s role. Only Flake understands the actual role of the Senate, but even he mostly locates the Senate’s weakness in a failure to follow his foreign-policy preferences. 

The fact is that the Senate is run by a Republican majority that largely agrees with the president on matters of policy. The common complaints about the Senate today often boil down to a view that the Republican Senate isn’t pushing back on Republican priorities, and that’s a bad thing. Perhaps it’s bad to the New York Times and liberal senators, but criticizing a Republican Senate for supporting a Republican president gives the game away, hence the misguided retreat to structural scolding about Senate weakness. 

To the contrary, the current Republican majority jealously guards its prerogatives when they come into conflict with the president. Indeed, it does so far more than Democratic majorities have in recent decades. If anything, the strongest attack on the powers of Congress has come not from the president but from the lower courts, and the Senate would do well to respond to them in kind.  

Structural Powers 

The structural powers of the Senate are the powers given to it by the Constitution. They aren’t what the Senate should do, but rather, what it can do. The Framers of the Constitution envisaged these structural powers as the main bulwark of liberty in our federal system. They include the separation of powers among the three branches and the diffusion of power between the federal and state governments. 

Each branch of government is entrusted with a power: Congress has the legislative power; the president has the executive power; and the judiciary has the judicial power. The Constitution enumerates certain overlaps between these powers, e.g., the veto power, which intrudes upon legislation, and the advice-and-consent power, which intrudes upon execution of the laws. But the general idea is that each branch, having its own complementary power, can check the others and in doing so preserve liberty.  

Within the legislature, the Senate has its own particular role to play. Unlike the democratic House of Representatives with its proportional representation, the Senate has equal representation of the states, and its members serve (much longer) staggered terms. This means that it is not as beholden to immediate political desires because at any one time only one third of its seats is at stake in the next election. This also means it’s a “continuing body,” subject to consistent rules over time—over which the Constitution gives the body plenary power. The basic rule is a lack of rules, or the assumption of unlimited debate and amendment, which empowers each individual senator This is what’s commonly known as the filibuster and the “cloture” rule, features of the Senate’s own rules that have evolved into an expectation that most major legislation will need supermajority support to end debate and then pass. This is the most unique and important feature of the Senate. 

Without the filibuster, the Senate would run the risk of becoming a smaller version of the House, ruthlessly managed by fleeting majorities of unimportant senators who whipsaw legislation from one ideological extreme to the other. 

The Senate’s other unique structural powers are those of advice and consent and treaties. Senior executive-branch officials and judges, while nominated and appointed by the president, need to be confirmed with the advice and consent of the Senate, putting a further democratic check on the execution of the laws. Similarly, treaties need to be ratified by two-thirds of the Senate, giving the Senate a role in our formal relations with foreign powers. 

These are all things the Senate can do. It can pass legislation by supermajority—with minorities and individual senators able to affect the outcome. It can stymie cabinet or judicial selections. It can ratify or reject treaties. Along with the House it has the power of the purse—although, with appropriations subject to filibuster, its use of that power has long alternated between bipartisan formalism and partisan brinksmanship.  

Policy Disputes 

These powers remain today in largely the same quantity in which they were present decades ago. The issue is not whether the Senate is losing its powers, but when it chooses to exercise them. So far in both Trump administrations the Republican Senate has assiduously protected its powers, while choosing to use them in ways that advance Republican priorities. 

The fact that President Trump has been energetic in his use of executive power does not mean that the Senate needs to combat that use if it thinks the power is being used properly. Executive power in and of itself is not a problem—indeed, the Constitution reposed the power in one president, as the Supreme Court has increasingly made clear. That Trump is robustly enforcing the immigration laws passed by Congress, for example, is far less of a problem than Biden’s refusing to do so or Obama’s attempting to change them by executive fiat.  

The question is not whether the executive is being aggressive but whether the executive is empowered to take the action he is taking. In any given instance, that analysis entails evaluating the statute under which he is acting against the backdrop of executive power established by the Constitution. It is always context specific. Solicitor General John Sauer’s staggeringly strong record at the Supreme Court is a good data point that generally Trump’s exercises of executive power have been structurally sound. 

Of course, just because a presidential action is structurally sound doesn’t mean it’s good. There is still room for policy dispute between the president and Congress—if they disagree. For the most part, they don’t. Aggressively combating illegal immigration and violent crime, promoting energy dominance, administrative deregulation, the enforcement of colorblind antidiscrimination laws, the robust use of military power to protect American interests—these are all things that the median Republican senator strongly supports. If he thinks that the president can and should do it, why would he oppose it? 

It was a very different story in recent Democratic administrations. Whether it was the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) immigration programs, NLRB recess appointments, President Biden’s student loan jubilee, or class-based immigration parole, Presidents Obama and Biden infringed upon Congress’s power. Far more often than not, Senate Democrats eagerly supported them. 

It goes without saying that there was no greater attack on the institution of the Senate than the Democratic effort in 2022 to abolish the filibuster in order to achieve long-desired political gains through federalized election laws. Every Democrat who sheds tears over the institution under President Trump happily voted to take a knife to it, only failing to do so because then–Senator Kyrsten Sinema (D-AZ) refused to go along. Manchin voted with Sinema but, as can be seen from his Times interview, he clearly doesn’t understand how the filibuster works, to this day endorsing a version of the “talking filibuster.” The reason the filibuster is important is not because it gives the minority a voice or lets the minority slow legislation down; it’s important because it gives the minority the power to stop legislation cold, as McConnell explained in his 2024 Scalia Forum Lecture at George Mason University. 

On the other hand, when President Trump has sought to undermine the filibuster, Republican Senators have stood their ground. Trump has demanded that McConnell or Leader John Thune (R-SD) abolish it dozens of times, and Republicans have consistently refused.  

Trump Confirmations 

There have been other ways President Trump has tried unsuccessfully to undermine the Senate. This time last year, the president and his allies were pushing for recess appointments to evade Senate confirmation. If Congress is in recess for a certain period, the president can simply appoint officers; Obama tried this until Senate Republicans, among others, beat him in court in NLRB v. Noel Canning. Senate Republicans said no on this to Trump, as well.  

This year, there has been a steady drumbeat from the president and his lieutenants urging the abolition of the “blue slip,” whereby home-state senators must consent to district court or U.S. attorney nominees in their respective states before the Judiciary Committee will consider them. While occasionally abused (by both parties), the practice prevents willful majorities from commandeering law-enforcement in specific states and is therefore a popular Senate prerogative. Republicans have, accordingly, refused to budge on it.  

While Republicans have confirmed controversial cabinet picks like Pete Hegseth for the Department of Defense and Robert Kennedy for the Department of Health and Human Services, this needs to be seen in historical context. In recent decades it’s virtually unheard of for the Senate to reject a cabinet secretary of its own party. The last cabinet pick to be affirmatively rejected was John Tower in 1989, when a Democratic Senate stopped him from being Defense Secretary. The expectation, therefore, that Senate Republicans would stop Trump’s picks was fanciful. At the same time, as Senate Republicans have feuded with neoisolationists in what the Trump administration now calls the Department of War, they have been willing both to grill and then stymie subcabinet nominees whose foreign-policy visions they find repellent.  

War Powers 

Again, the Constitution vests the president—and only the president—with the executive power and names him commander-in-chief. While Congress has the power to declare war and fund the armed forces, it’s the president who commands them because military action necessarily involves speed and secrecy, neither of which is a comparative advantage for Congress.  

Congress in the past has sought to restrict this power through the War Powers Act—presumably what Flake meant when he mentioned to the Times that the Senate is dropping the ball on “war powers”—which purports to limit the unauthorized use of military force by the president. Senators, though, swear an oath to uphold the Constitution, and not-inconsiderable figures, like former Vice President Dick Cheney, have deemed the War Powers Act unconstitutional. In an unpublished speech, then–Congressman Cheney explained why he “cannot accept such a limited view of the President’s inherent powers.” He noted that the power to declare war in the Constitution was initially the power to “make” war, a change that was undertaken both to allow the president to repel invasion and—according to Roger Sherman—“to commence war” without needing congressional debate. Cheney noted, “It is no wonder, therefore, that the narrow view of the President’s power has been rejected throughout American history. From the earliest years, Presidents have deployed force without statutory authorization for purposes well beyond a defense against sudden attacks.” 

The Senate has just yesterday started to process a resolution under the War Powers Act attempting to restrict the president’s actions in Venezuela. As seen in the initial vote on the resolution, there are some Republican senators, like Todd Young (R-IN) who think they should play a robust role in war-powers issues; but there are plenty, like Republican Conference Chairman Tom Cotton (R-AR) and McConnell who take a Cheney-like view of executive power. The issue would seem to have a new urgency following the “snatch” operation against Venezuelan autocrat Nicolas Maduro. The point, though, is that this is a reasonable debate and each senator needs to act here according to his best constitutional lights. The Senate’s reluctance so far to interfere in the president’s military activities in the Caribbean, from the perspective of Senate hawks, is an exercise in knowing their constitutional role, not abdicating it. It’s not obvious that the Constitution allows senators to, in Cheney’s words, “set themselves up as alternative Secretaries of State.” 

Tariffs 

The tariff situation is similarly complex. If Senate Republicans tend to be hawks, they also tend to be free traders. They also are mostly running for reelection at some point and don’t want to own the tariffs’ inflationary pressures. At the same time, Trump has a point about the foreign-policy advantages he has with retaliatory tariffs—he used their threat to great effect with former Mexican president Andrés Manual López Obrador, a fact even conceded by Senate free-traders. On the other hand, his balance-of-trade tariffs look a lot like taxes—and are often touted as such—and are more clearly in the purview of Congress. But … so what? If Congress canceled the emergency authorizing the tariffs, the president would veto it, and it’s almost certain such a veto would be sustained.  

There’s an old McConnell saying: a senator has to decide if he wants to make a law or make a point. Absent veto-proof majorities, Senate legislative action squarely against the president with regard to tariffs and elsewhere would fall in the category of making a point. This complaint from the Republican Senate’s critics is the Animal House theory of Senate powers: “I think this situation absolutely requires a really stupid and futile gesture on somebody’s part.” 

Rescissions 

The most challenging development in the current Republican Senate was the passage of a rescissions package. In short, Republicans used a “privileged” (i.e., filibuster-proof) legislative process in the Impoundment Control Act to rescind various appropriations, most notably those going to public media and those involving woke NGO funding. This was entirely within their power to do, and they did it because they rightly don’t like any of the programs they were being asked to defund. It seems to have thrown a wrench into the appropriations process, however. Recall that appropriations bills need sixty votes, so Democrats can’t be written out of the process any more than Republicans could under Biden. But why cut a deal with Republicans when they can turn around and zero-out your priorities later on a party-line vote?  

Even here, though, the bigger picture is more complicated than the Senate’s critics would let on. Yes, Congress spends money and it often does so in very specific ways. The argument for “earmarks” (or directed spending) is that the people who are supposed to spend the money should say where the money goes. Yet it’s the president who’s entrusted with taking care that the laws be followed pursuant to a policy agenda for which the whole country votes. How the administration should treat directed spending and other appropriations (here from a prior Congress and administration) that are contrary to the president’s policy goals doesn’t have an obvious answer. It’s not just the spending of money, after all, but the execution of the spending. Ironically, one of the most tireless and effective opponents of directed-spending earmarks—putting the discretion, by default, in the hands of the executive—was then–Congressman Jeff Flake. 

Lower-Court Judges 

Far and away the main instigator of attacks on congressional powers has not been the president but rather the lower courts. In their resistance to Trump policies they have frequently taken aim directly at Congress, directly or indirectly. Perhaps the most egregious example is Judge Indira Talwani in Massachusetts, who has twice attempted to enjoin Congress’s successful efforts to defund abortion providers in the One Big Beautiful Bill Act. It’s one thing for courts to enjoin executive actions on how agencies spend money—again, it’s an area that gets difficult with spending and executive power running up against each other. It’s another thing entirely to say that Congress must fund Planned Parenthood. Indeed, Senate budget-reconciliation rules forbid “targeting,” so her musings that the law was a bill of attainder runs right into the teeth of Senate rules themselves. It’s no surprise that Judge Talwani has even twice been reversed on this question by the ultraliberal First Circuit Court of Appeals. 

Similarly pernicious is the stream of lower-court judges ignoring clear statutory channeling mandates regarding what courts can hear cases. Under the Constitution there is a Supreme Court and such lower courts as Congress may establish. In establishing those courts, Congress has enacted various jurisdictional rules as to which kinds of cases they can hear. For example, contract claims against the federal government belong in the Court of Federal Claims. This hasn’t stopped blue-state district courts from issuing injunctive relief against the Trump administration as it enters into enforcement actions that cut funding to recipients. The Supreme Court has implied on its interim docket that the district courts need to pay attention to their jurisdictional limits here. 

Or take the case out of the Fourth Circuit involving whether immigration judges need approval to give “official” speeches. Congress, in the Civil Service Reform Act (CSRA), channeled all such cases to the Merit Systems Protection Board, not the district courts. Nevertheless, the Fourth Circuit ordered the trial court in Alexandria to “conduct a factual inquiry [into] whether the CSRA continues to provide a functional adjudicatory scheme.” As Judge Marvin Quattlebaum observed in a fiery dissent from denial of en banc review, “The Supreme Court has already given us the answer. Not subtly. Not by implication. No, the Supreme Court has told us twice—emphatically and directly—that district courts lack jurisdiction over claims like the ones the National Association of Immigration Judges … asserts here.” Indeed, as Judge J. Harvie Wilkinson noted in his concurrence in the denial, “I do not believe that our court enjoys the prerogative to decide whether a particular statutory program is ‘functioning as Congress intended.’” Congress answered the question in the CSRA and the Supreme Court has reinforced what Congress answered. Yet willful courts disagree. 

It’s fruitless to count all the district-level immigration cases that have sprung up in the last year, even though the Immigration and Nationality Act expressly deprives them of jurisdiction. 8 U.S.C. § 1252(a) makes it abundantly clear that final orders of removal are appealable only to a circuit court, while 8 U.S.C. § 1252(b)(9) specifically denies those subject to removal from accessing the writ of habeas corpus. Nevertheless, the district courts persist in issuing habeas writs and injunctions in cases where the administration is seeking to deport illegal aliens.  

Congress enjoys no greater power than legislation, and courts around the country are simply ignoring legislative text.  

Republicans are largely trying to preserve the powers of the Senate as an institution. They have taken various steps to do so quite assertively, such as in their defenses of the filibuster and the blue slip. Complaints that they aren’t are, at their core, complaints that they agree with President Trump on questions of policy and they shouldn’t. It either comes from a misunderstanding of what Senate powers actually are, or is an insincere attack, depending on the source.  

Indeed, these attacks are preposterous coming from Senate Democrats who, in recent decades, have shown little interest in preserving the powers of the Senate. Unlike Republicans who see value in its deliberative processes as they relate to significant legislation, Democrats have sought to short-circuit those processes or allow the president to do the same in order to achieve progressive policy goals and perceived electoral advantage. If Senate Democrats and their allies were interested in strengthening the actual structures of the Senate, preserving a counter majoritarian body regardless of the president, they would probably find willing cooperation from Republicans.  

The complaint, however, is that Senate Republicans aren’t doing enough to stop Donald Trump. The explanation isn’t that they’ve given up their powers; it’s that they generally agree with him.  

If Senate Republicans do want to flex their constitutional muscle, they should do so against the branch that’s actually intruding on its powers: the judiciary. There’s no point in writing laws if the courts won’t follow them. It’s the trial judges, not the president, who are sapping Congress’s power. Perhaps it’s time that Congress does something about it.  

Image licensed via Adobe Stock.