American Checks Still Exist, but the Branches Have Stopped Using Them

The central problem described by Maya Kornberg, Jack Goldsmith, and Stephen Vladeck is not that American democracy lacks formal checks. It is that the institutions responsible for using those checks have either surrendered them, lost the capacity to exercise them, or used their own power in destabilizing ways. Congress has ceded authority and hollowed out its own machinery. Presidents have absorbed power across decades. The Supreme Court, in Vladeck’s view, has become less a stabilizing check than another participant in the conflict.

That creates the reform paradox running through the discussion: the fixes depend on the very institutions whose weakness produced the crisis. A stronger Congress is needed to constrain presidents and regulate the Court, but Congress is under-capacitated, polarized, money-saturated, and fearful. A future president would need to restrain the presidency, but the incentives of modern presidential politics reward unilateral action and retaliation. The Court may need to be made more accountable, but reforming it without destroying judicial legitimacy is itself a constitutional and political problem.

Kornberg began from the point that the framers expected Congress to predominate. She quoted James Madison’s claim that “in a republican government, the legislative authority necessarily predominates,” and argued that Congress is failing to meet that expectation. The Constitution, in her account, gives Congress tools to respond to Supreme Court overreach, including constitutional amendments and ordinary legislation. Congress “desperately needs” to use those tools on voting rights after the Shelby decision, she said, and to pass laws banning partisan gerrymandering and strengthening voting protections. Congress also holds the power to declare war, but has not done so since World War II. It holds the power of the purse, but presidents have taken increasingly central roles in budget negotiations, and a president, she said, has “withheld and refused to spend hundreds of billions of dollars of congressionally authorized spending.”

Goldsmith agreed that Congress was designed to be dominant, but rejected the premise that the original constitutional mechanism ever worked as intended. Madison’s theory depended on branches defending their own institutional interests against one another. That assumption, Goldsmith argued, was undermined almost immediately by political parties. The framers disliked factions and did not anticipate that members of Congress would become more loyal to party than to Congress as an institution.

That failure helps explain what Goldsmith called “the great change” over 250 years: the “inexorable growth of executive power.” He emphasized that this did not begin with Donald Trump or even with the modern presidency. In his account, it began in 1789 and has continued through wars, administrative complexity, and Congress’s repeated delegation of authority to presidents who were willing to take and expand it.

Goldsmith’s sharpest example was war powers. The framers believed they had constrained presidents from going to war without authorization. Goldsmith said that, today, “there’s basically no legal constraint whatsoever on the president’s ability to go to war.” He described President Trump’s strike on Iran as, in his view, “the second most consequential unilateral use of force in American history after the Korean War,” and said Trump did not ask permission from Congress or consult it.

Vladeck accepted the premises that Congress is failing and that the constitutional design did not anticipate modern parties. But he argued that the analysis is incomplete unless it includes the Supreme Court. In theory, the judiciary should police whether the political branches follow the law. In practice, Vladeck said, the current Supreme Court appears less interested in policing the relationship between Congress and the presidency than in advancing a particular ideology of constitutional interpretation.

He did not describe this as new in every respect. Like Goldsmith, he treated Trump as a result of longer decay, not the origin of it. But Vladeck argued that the current moment is distinctive because the Supreme Court is not aggressively restraining presidential power. In some respects, he said, it is “bending over backwards to enable it.” Hamilton had described the Court as “the least dangerous branch.” Vladeck’s answer was that the Court is “pretty dangerous right now.”

That was the first major disagreement worth holding onto. Goldsmith later argued that courts, including the Supreme Court, have done “a much better job than people appreciate” in checking Trump, especially because they are “literally the only institution of government doing so.” Vladeck agreed that lower courts have been crucial, but separated the district courts from the Supreme Court. His complaint was not that judges as a whole had failed; it was that the Supreme Court, especially on the emergency docket, had too often let the administration continue disputed policies while litigation proceeded.

Maya Kornberg’s account of congressional failure was not only about cowardice or partisanship. It was also about capacity. Congress, she argued, has made itself less able to do the work that would allow it to stand up to presidents, courts, lobbyists, and crises.

She cited the changes that followed Newt Gingrich’s speakership after the 1994 Republican Revolution. One journalist, she said, called what Congress did to itself a “self-lobotomy.” Congress defunded its own science support agency, the Office of Technology Assessment, and never refunded it. Kornberg noted the obvious contemporary problem: Congress might need an agency to help it understand science. It also cut committee staff and staff for other support agencies. Today, she said, Congress has “several thousand fewer staff than it did just a few decades ago.”

For Kornberg, this matters because members cannot reclaim power if they lack institutional brainpower. Congress also has not reorganized committee jurisdictions since the 1970s, before the internet existed. It is, in her words, “not organized for success right now.”

The same abdication appears in appropriations. John Dickerson paused on the Impoundment Control Act because, as he put it, it can sound “incredibly boring and abstract” while going to the center of constitutional balance. His explanation was that Congress decides how spending should be done, and a president cannot simply refuse to spend money Congress has ordered the executive branch to spend. Otherwise, the president would effectively gain a veto over Congress’s spending power. Nixon’s impoundment efforts provoked the statute, Dickerson said. Trump, in his summary, has used impoundment successfully.

Kornberg corrected the frame slightly: Trump was not the first president since the act’s passage to manipulate loopholes or vague areas in the statute. But she argued that Congress has not done enough to strengthen the law. It needs to close loopholes, make use of the statute, and “double down” on it. She noted that some efforts to do that are now underway.

Stephen Vladeck supplied the example that, for him, captured the current breakdown. During a wave of unilateral rescissions, Representative Tom Cole of Oklahoma, the chair of the House Appropriations Committee, said, according to Vladeck, “appropriations aren’t laws.” Vladeck stressed the institutional significance of that statement: Cole was not a novice or a marginal member, but the chairman of the committee responsible for appropriations. Article I, Section 9, Clause 3, Vladeck said, does not merely say appropriations are laws; appropriations are “the only thing the Constitution says only Congress can do.”

Dickerson translated the absurdity into a metaphor: it was like “the chef at a four-star restaurant saying, ah, we don’t need to feed people.”

Jack Goldsmith made the same point through Senator Susan Collins, chair of the Senate Appropriations Committee. Asked why she confirmed the head of the Office of Management and Budget, whom Goldsmith described as devoted to destroying the appropriations power, Collins’s answer, as Goldsmith summarized it, was essentially that courts could handle it. For him, that was Congress giving away its own job.

The appropriations examples matter because they collapse several institutional failures into one. Congress has the formal power. Presidents test or exploit weak spots. Courts become the fallback because Congress declines to defend itself. And the members most responsible for the power in question can describe the matter as though it belongs to someone else.

Jack Goldsmith’s diagnosis of war powers was especially bleak because it involved all three branches failing to constrain the presidency at once. Presidents want to act, Dickerson noted, especially in national security matters where secrecy and speed may matter. The question was whether a legal balance can exist between necessary executive dispatch and the War Powers Act’s intent to prevent unilateral or foolish wars.

Goldsmith said it is “very difficult.” As a former head of the Office of Legal Counsel, he said there are very few instances in American history in which a legal adviser told a president that he could not engage in an act of war. He could “count them on a couple of fingers.”

The reason is partly internal executive branch precedent. Presidents’ lawyers rely on prior opinions, and those opinions build on one another. In the war powers context, Goldsmith said, those executive branch precedents tend to become the governing law because courts have “from the very beginning,” with a small Civil War exception, abdicated authority. They do not review presidential uses of force.

That leaves the decision largely to the president and the president’s legal advisers. Before the Trump administration, presidential advisers did constrain national security actions in some areas, Goldsmith said. But on war powers, he said, “it just doesn’t happen.”

Congress has also been weak. Goldsmith called the War Powers Resolution “Swiss cheese” and “never effective.” The result is that presidents decide on their own whether to go to war, often based on political calculation. In Trump’s Iran strike, Goldsmith said, it was not even clear that there had been a robust or coherent political calculation. The constraint becomes whatever politics might generate afterward. Congress has pushed back in rare cases — after Vietnam, Somalia, and Lebanon — but only when politics became “very, very, very bad.”

Maya Kornberg saw possible historical openings. Congress has stood up in moments associated with wave elections, including the Watergate babies of 1974 and the Republican Revolution of the 1990s. It has also reorganized itself after presidential overreach created urgency, including in the 1940s after World War II and in the 1970s. She suggested there may be “rumblings” of those conditions again.

Stephen Vladeck added 1932 to the list, not because it reallocated power between Congress and the president, but because it affected the relationship between the political branches and the Court. After the New Deal Democrats came into office, the political branches pursued reform programs while the Supreme Court stood against them. The 1936 election, he said, became “basically a referendum on the Court.” For Vladeck, the lesson of wave elections is that long-term trends can sometimes be reversed quickly.

Goldsmith agreed that the 1970s produced many reforms that were consequential for 50 years, even if the War Powers Resolution itself failed. Vladeck responded that some of those reforms were successful until the current Supreme Court “got its hands on them.” He named the Impoundment Control Act, the Ethics in Government Act, and the Civil Service Reform Act as statutes meant to constrain presidents or protect certain forms of independence, but which the Court has, in his account, made harder to enforce in recent rulings without necessarily striking them down.

Jack Goldsmith framed modern separation of powers through an article by Daryl Levinson and Rick Pildes: the United States no longer has a separation of powers so much as a separation of parties. When the president’s party controls Congress, Congress diminishes as a check. In the first year and a half of the second Trump administration, Goldsmith said, that tendency has appeared in extreme terms because Trump is effective at punishing or deterring members who cross him.

The result, in Goldsmith’s view, is not merely passivity but enabling. Congress’s party loyalty has “supercharged and encouraged Trump.” If Congress is doing “literally nothing,” he argued, courts can do only so much.

Maya Kornberg agreed that polarization is central to congressional gridlock. According to some measures, she said, polarization in Congress resembles the pre-Civil War era. But she emphasized two less-discussed mechanisms by which Congress has become less capable of action.

The first was social and geographic. Gingrich discouraged members from moving to Washington, D.C., which Kornberg said deprived them of organic relationships with one another. Without regular personal relationships, members have fewer opportunities to build the alliances required to legislate. Today, she argued, there are too few settings where members can even speak to one another.

The second was political violence. Kornberg said Republican members who considered voting to impeach the president or standing up in other ways faced threats against themselves and their families. She cited Liz Cheney’s account that members told Cheney they would have voted to impeach but feared for their own and their families’ safety. Kornberg said this goes beyond partisanship and reflects a chronic political violence problem.

Stephen Vladeck extended the partisanship analysis to the Court. The Supreme Court has always had ideological and sectional divisions, he said, but not divisions that mapped as cleanly onto partisan appointment as they do now. He identified 2010, when Elena Kagan replaced John Paul Stevens, as the first moment in the Court’s history when the justices’ ideological divisions mapped perfectly onto the party of the president who appointed them. Today, he said, “6-3” means not just six conservatives and three liberals, but six Republican appointees and three Democratic appointees.

That was not true for much of the Court’s history. Vladeck used Roe v. Wade as an example: it was a 7-2 decision with three Republicans in the majority and one Democrat in dissent. In the current Court, he said, recent decisions reinforce the perception that the Court is not aloof from partisan conflict. In the prior week, the Court decided nine cases; seven were 6-3; all seven 6-3 cases had the usual 6-3 majority.

The disagreement between Goldsmith and Vladeck over the courts is therefore narrower and more useful than a simple pro-court or anti-court divide. Goldsmith argued that the courts, including the Supreme Court, have done better than many people appreciate in checking Trump, especially given Congress’s passivity. Vladeck said he was a “fervent defender” of the role courts had played in the first 18 months of the second Trump administration, but he meant especially district courts, including judges appointed by presidents of both parties.

Vladeck emphasized the personal pressure on those judges. He said the U.S. Marshals Service had reported, in information leaked by a judge, that one in three federal judges received a direct credible threat during 2025. He called that “insane.” But he separated that lower-court performance from the Supreme Court’s emergency docket. In his account, where the administration asked the Court to let it continue doing things while cases proceeded, the administration had suffered one major loss in the Illinois National Guard case and had won 26 times. That ratio, Vladeck said, seemed “out of skew,” even if he did not place the whole crisis on the Court.

The current crisis, in Jack Goldsmith’s account, is both structural and personal. He did not see the problem as “just Trump.” He described Trump as “a thousand x” version of trends already visible 10 or 15 years earlier, when presidents frustrated by Congress increasingly relied on unilateral action. Obama, Goldsmith said, was aggressive in using law enforcement discretion to change laws, in manipulating appropriations, and in using Title IX pressure against universities in ways many considered illegal. Biden, Goldsmith said, was “the first president to fire an independent agency president under the unitary executive precedents.”

In Goldsmith’s account, the diminution of norms and the aggressiveness of the executive were already underway. Trump built on some precedents and created new ones. But Goldsmith singled out the weaponization of the Justice Department as especially destructive and consequential, and attributed that largely to Trump himself. Prior administrations had done things Republicans viewed as weaponization, he said, but Trump took it “to a new dimension.”

Goldsmith also offered a guarded forecast. He said he was “pretty confident now that we’re going to survive Trump.” He believed Trump was losing power and that the basic structures would remain, though damaged. The more important question, he said, is what happens next.

Maya Kornberg resisted the idea that Congress is a fixed structure into which better individuals can simply be elected. One of the biggest myths about Congress, she said, is that it is static, governed by old rules, and that electing the right people is sufficient. She described Congress instead as “a living, breathing institution” shaped and reshaped by the people who enter it. It has ceded power to the executive, but it has also, in the 1970s and other moments, stood up to the executive. It can change again.

But Kornberg added another force beyond institutional design and individual character: money in politics. She described the campaign finance system, shaped by Buckley v. Valeo in 1976 and Citizens United in 2010, as “completely distorting” not only campaigns but the daily functioning of Congress. Members must pay dues to the party to get committee assignments and leadership positions. They maintain leadership PACs to build clout and relationships. Kornberg called it a “pay-to-play system” and said it is impossible to overstate its distortive effect.

Stephen Vladeck applied the structure-versus-character question to the Supreme Court. He said many Democrats view the Court’s problem as a character problem and focus on vilifying particular justices, especially Samuel Alito and Clarence Thomas, and sometimes Brett Kavanaugh and Amy Coney Barrett. He called that a category error.

The United States has had bad justices before, he said, including racists and “horrible human beings.” What makes the current Court powerful is not simply who sits on it, but that it is “completely emboldened to do whatever it wants whenever it wants.” Different personnel might produce different outcomes, but the underlying lack of accountability would remain.

That is why Vladeck rejected Court expansion as the central reform. He argued there is no guarantee the next four Democratic nominees would care more about institutional accountability rather than different results. Court expansion also risks confirming that the Court is “all just politics all the way down,” undermining institutional credibility. In his warning, Democrats might add four justices, Republicans might later add 14, and in 25 years the country could have a 51-member Supreme Court with no credibility.

He instead focused on congressional regulation of the Court. He cited a 2023 Wall Street Journal interview in which Justice Alito said, “No provision in the Constitution gives Congress the power to regulate the Supreme Court, period.” Vladeck called that “literally incorrect,” pointing to Article III, Section 2, Clause 2, which, in his description, gives Congress power to make regulations to the Court’s jurisdiction. But he said Alito’s statement captured the reality of the current moment: Congress does not regulate the Court anymore, Congress does not think it should, and the Court does not think Congress should.

Jack Goldsmith’s largest fear is that Democrats, angered by Trump’s weaponization of executive power against them and their favored institutions, will respond by doing the same thing when they regain power. If Trump’s conduct is met with “a round by Democrats doing that,” Goldsmith said, institutions that are already in terrible shape may be “irretrievably harmed.”

His hopeful scenario was difficult and, by his own admission, unlikely. It would require conditions to become so bad under Trump that a broad consensus emerges, as after Nixon, in favor of serious presidential reform. A Democratic president would then need to come in committed to constraining the presidency and making it more accountable, while minimizing the desire to punish enemies. Goldsmith said there is “a long list” of things that can and should be done to constrain the president, but the political challenge would be enormous.

Asked how to question a 2028 presidential candidate on Justice Department weaponization, Goldsmith proposed a question he acknowledged would not be a winning campaign slogan: Are you willing to commit to the kinds of reforms Jimmy Carter committed to in the 1970s, and largely followed through on? Are you willing to nominate an attorney general committed to those reforms and follow through?

He noted that the Biden administration had opportunities to enact corruption reforms that could have limited or minimized some of what Trump later did. Those proposals were on the table and widely understood, Goldsmith said, but they were not important enough to the administration. That, in his view, was true of presidential reforms generally during Biden’s presidency.

Maya Kornberg’s voter-facing answer was to look beyond Election Day. Many people donate, canvass, and assume that once the right candidates are elected, those candidates will do what voters elected them to do. But Congress, she argued, does not work like the “Schoolhouse Rock” version of how a bill becomes law. Leadership often writes bills, sometimes with lobbyists’ help, and pushes them down to members while bypassing committees. Members may not have time to read bills before voting, let alone deliberate. They spend the day “dialing for dollars.” They may fear voting their conscience because of threats to themselves and their families.

Voters, in Kornberg’s view, should ask what happens after the election so that members can actually make change. Her reform agenda included campaign finance reform, tackling political violence, and changing congressional rules so rank-and-file members have more power. She quoted a recently retired member who compared members of Congress to “potted plants” in terms of their current legislative power.

For candidates, Kornberg proposed direct institutional questions: What does congressional reform look like to you? Will you commit to thinking now about a rules package for the 120th Congress? Will you commit to ethics reforms such as banning congressional stock trading and strengthening ethics enforcement? Her point was that voters should ask candidates about the institution itself, not only the policy soundbites candidates prefer to discuss.

Stephen Vladeck added that any democratic reform agenda now has to anticipate judicial review. If Congress passes campaign finance reform, ethics reform, or voting rights legislation, what happens when the Supreme Court strikes it down? He said candidates and reformers need to explain how they would insulate small-d democratic reforms from judicial invalidation or make them stable.

He saw two broad paths. One is to “kneecap the court,” which he said may be satisfying in the short term but destructive in the long term. The other is to “make the court an offer it can’t refuse” — not by adding four seats or stripping all jurisdiction, but by restoring the condition in which the Court looks over its shoulder. He named an Article III inspector general, renewed congressional control over the Court’s budget, and reforms to Supreme Court appellate jurisdiction as examples of less dramatic but institutionally significant measures.

For Vladeck, the broader point was that institutionalism has become urgent again. He said he and Goldsmith had sparred for nearly two decades, but because both are institutionalists, they had moved closer together. There was a long period when institutionalists were ignored. Now, he argued, the country is seeing why healthier interbranch dynamics matter: not because policy preferences are unimportant, but because no policy preference can remain stable without a functioning institutional environment.

Campaign finance, election rules, and representation are not separate from the separation-of-powers problem in Maya Kornberg’s account. They shape who enters Congress, what members spend their time doing, and whether Congress can operate as more than a vehicle for leadership, parties, donors, and fear.

Amanda Leatherman, a lawyer and deputy general counsel at Vote.org, asked whether the branches can be rebalanced without overturning Citizens United and removing billionaire money from all three branches of government. Kornberg answered that Congress needs to propose a constitutional amendment reversing what she called the “horrors” Citizens United unleashed, allowing states and the federal government to regulate election spending.

But she said that is not enough. The Brennan Center has long advocated small-donor public financing, in which candidates raise small contributions that are matched by public funds, sometimes sixfold or eightfold. Kornberg said women are more likely to run and raise money from small donations rather than a few megadonors, and that the same is true of other groups. Big money, in her view, is not merely a campaign problem. It shapes Congress internally and disadvantages Americans with less access to wealth.

A second audience question asked how Congress could pass legislation to end gerrymandering, and raised ranked-choice voting and primary reform. Kornberg said Congress “desperately needs” to pass legislation banning partisan gerrymandering and strengthening voting rights. She pointed to HR1 in 2019 as a major legislative effort that did not make it across the finish line, but said efforts have continued since then. She was encouraged that corruption, anger over a rigged money system, and concern about partisan gerrymandering have become major issues in many campaigns.

Kornberg then made an additional argument: before or alongside election-system reforms, the House of Representatives should be expanded. Members of Congress now represent nearly a million people, she said. In the original Congress, they represented 30,000. Expanding the House was, for her, “the number one thing” to do in addition to other innovations.

Stephen Vladeck added the constitutional basis. Article I, Section 4 gives Congress power to create rules for the time, place, and manner of congressional elections, he said. Congress has not used that power often, but it has used it, including by setting Election Day as the first Tuesday after the first Monday in November. Vladeck said Congress has a much larger constitutional toolkit over congressional elections than it has historically exercised.