The Impotent Legislative Branch

It’s supposed to be the most powerful branch. Now it’s an afterthought

“In republican government, the legislative authority necessarily predominates,” James Madison wrote in Federalist no. 51. Most founding fathers shared Madison’s view that the legislative branch would be the central force in American government. For much of American history, legislative authority predominated.

But, in the second Trump administration, it does not. One could almost be forgiven for thinking the legislative branch disappeared. Besides approving Trump appointees, Congress has accomplished little in 2025.The legislative branch didn’t do much in previous years either. Its main achievement in the first Trump term was impeaching the president. It’s nearly impossible for Congress to pass any serious legislation. It can only pass temporary funding bills, and it even struggles to do that. Its most important power lies with the Senate and its required approval of presidential appointments. This is an important power, but it hardly makes the legislature the dominant branch.

Modern American governance is more shaped by the executive branch, the judicial branch, and the unelected bureaucracy. It may be against the Founders’ intentions, but it might be for the best if the legislative branch is impotent. When bipartisanship reigns, the nation gets the shaft.

All of Trump’s accomplishments are the result of executive actions without legislative input. Revoking birthright citizenship, cracking down on illegal immigration, sending migrant gangbangers to El Salvador, firing thousands of government workers, waging war on DEI and affirmative action, the “Liberation Day” tariffs, and his efforts at peace in the Middle East and in Ukraine have all been done on his own. No bill made these possible; it was all done by the president and his admin.

The challenges to Trump’s acts come from judges, not Congress. The second Trump term has been defined by this fierce battle between the executive and judicial branches. Some observers worry we face a constitutional crisis over the fight, with President Trump boldly asserting executive will in spite of the demands of liberal judges. For instance, he shipped out hundreds of migrants to El Salvador before a judge could halt the flight. In spite of a judge insisting they be returned, the migrants remain in Central America. Liberal judges are also trying to stop DOGE’s ability to reshape the administrative state. Trump supporters insist the judicial branch is overstepping its authority, while administration opponents argue its the executive branch exceeding its power.

Missing from this fight is the legislative branch. Outside of a few threats to impeach judges (a completely unlikely possibility) and some lawmakers worrying about Trump’s criticism of jurists, Congress hasn’t involved itself in this critical fight. Lawmakers focus more on getting on TV than doing anything real.

The one major piece of legislation that Congress has the opportunity to pass may not ever reach the president’s desk. The reconciliation bill, which Trump has endorsed, continues to languish in the House. The bill is needed to fund Trump’s immigration agenda, as well as secure his tax cuts and accomplish other Republican interests. However, some conservatives feel it doesn’t cut enough, so they oppose it. It’s unlikely they will get a better bill than this, yet they remain firm in their opposition. The bill is currently blocked in committee with its future hanging in the balance. If it doesn’t pass, it further reinforces the notion that the legislative branch is incapable of doing anything.

In the wake of legislative impotence, the judicial and executive branches have made policy on their own. Gun rights, abortion, gay marriage, and several other issues were decided by the courts. Legislators had little to do with these policy changes. Trade and foreign policy are entirely determined by the executive branch. Immigration is currently split between the executive and judicial branches, with both sides fighting over who gets the final word. Congress certainly isn’t doing anything about it. Biden opened up our borders to the entire world without congressional approval. Trump has reduced illegal immigration to historic lows without any congressional help. The only thing Congress is asked to do is fund immigration enforcement, a simple task that the august body can’t seem to accomplish.

The other element that holds tremendous power is the unelected bureaucracy. Technically under the purview of the president, this institution regularly acts on its own and can even undermine the president. This was evident during Trump’s first term when the “deep state” concocted Russiagate and other frivolous scandals to undermine his presidency. The military refused to follow Trump’s orders during the 2020 riots. The bureaucracy effectively couped Trump after J6, taking over the full powers of the government while Trump couldn’t even tweet. Under Biden, the bureaucracy ran the government. The senile president was too busy napping and imagining that he was talking to dead European leaders to notice. The Pentagon didn’t bother informing the White House when Defense Secretary Lloyd Austin was hospitalized in 2023. The DoD could function fine without any oversight from the president.

The bureaucracy carries out much of our foreign policy and is able to shape it independent of the elected powers. Trump is currently trying to rein in the bureaucracy and make it more accountable to the president. Whether this succeeds is yet unknown. But what is known is that Congress plays no role in countering the Deep State. In the 1970s, Congress famously cracked down on the excesses and abuses of our intelligence agencies. The idea of the House and Senate doing the same again is a joke.

It may seem to be a bad thing that Congress is incapable of serious action, but it might be for the best. When Congress comes together and acts for a united purpose, it’s generally not good. Bipartisanship gave us expansions of the civil rights regime, more immigration, amnesty, and the Iraq war. Polarization undermines the ability for both sides to work together, which means they can’t legalize illegal aliens or limit gun rights. Neither side is able to gain an overwhelming majority in Congress, further diminishing the branch’s capacity for radical change. Congress can only enact serious change when one party controls both chambers by a large margin, as well as the White House. This is how Democrats passed Obamacare. Control by a narrow margin doesn’t cut it, as is the case with the current Trump admin.

The Founders wanted a powerful legislative branch, but it may not be the best idea for today. In their day, it was easy to imagine a homogenous America could reach consensus and agree on shared interests. Thus, it was better to let Congress predominate. In our diverse, multicultural country, consensus is pretty much impossible among elected officials. Americans are wildly different from one another in terms of their values, interests, and identities. The only thing Congress could pass with no objections is to make the Monday after the Super Bowl a federal holiday. For everything else, division and rancor rule.

If we depended on Congress to do things, nothing would get done. Gridlock is the order of the day. The only way to overcome that is for “moderation” to take over. That would be terrible for America. Congress would pass liberal legislation with trivial concessions to conservatives and further ruin the country. This is how things worked for much of the second half of the 20th century. There’s no need to return to it.

If we want to make America great again, we will have to depend on a strong executive and a conservative judiciary. Of course, Democrats could wield these structures for their own purposes when they’re in power, but that’s just how politics works now. It’s also how Democrats have operated for generations. It’s idiotic for Republicans to pretend we still live in the days of James Madison. It’s a whole new time period that requires a different strategy.

It’s up to the president and judges to make policy. It’s not what the Founders wanted, but it’s our only hope to enact real change.