The return of pen-and-phone constitutionalism

That is precisely what has now happened, and it is indeed wrong. But so far, most Republicans in Congress seem reticent to say so. As in the Obama years, the president’s party in Congress is all too eager to encourage an executive incursion onto legislative turf.

And thus, one kind of constitutional failure invites another: An absence of the necessary constitutional self-restraint on the part of the presidents is answered with an absence of the necessary constitutional assertiveness on the part of Congress. These are both failings of constitutional virtue.

And they are not the only such failures at the juncture of the two elected branches. They have emerged alongside Congress’s eagerness to delegate its power to administrative agencies and the Senate’s lack of interest in asserting its advice-and-consent powers (as the executive branch fills with “acting” officers in the Trump era just as it did with recess appointments in the Obama years).

These are challenges that the courts are institutionally ill-suited to remedy. They require the other constitutional institutions to take account of their responsibilities, and they require a citizenry keen to insist on the proper functioning of our constitutional order. The tradition of judicial restraint in matters of enforcement discretion does not justify Congress’s abdications of constitutional power and responsibility. Quite the opposite, in fact: Where courts cannot prevent a president’s anti-constitutional action, Congress’s own responsibility for constitutional preservation becomes all the greater.