GOLDBERG: Americans mad about politics should be blaming Congress 

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The American judicial system should not be the primary check on executive power; there is legislative power.

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Whatever you think about American politics and government, whether you're on the right, the left, or somewhere in between, you should be angry at Congress. I don't just mean the Republican-controlled Congress (though by all means, be mad at them), I mean the institution as a whole.

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Let's start with the big picture.

In the US constitutional system, Congress is the highest branch of government. It is not “equal” to the other branches of government, and any claims to the contrary are Nixonian propaganda. Richard Nixon's White House coined the word “peer” into widespread use to protect itself from congressional oversight. “Equal” does not appear in the Constitution. It is used rarely in the Federalist Papers, but never to describe the relationship between the three branches of government with each other (except once to describe the parity between the House of Representatives and the Senate).

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Just look at the powers granted to Congress. He can dismiss members of other branches; the other branches cannot fire anyone in Congress. Congress writes the laws. He has the sole power to raise taxes (hardly a minor issue for the tax rebel Founding Fathers), borrow money, regulate trade, raise armies, and declare war. Congress creates all courts and federal agencies not specified in the Constitution. It sets and pays them wages. He has the exclusive right to admit the states into the union. Other branches of government have nothing like these powers.

But over the last century, Congress has dismantled itself, like a robot ordered to put itself back in its box, delegating its functions to other branches of government. It has delegated most of its regulatory powers to the executive branch and the courts. He delegated most of his military and trade powers to the president.

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Congressional leaders have also deprived not only members but also committee chairs of meaningful influence over the development of legislation, effectively disenfranchising voters. Leadership simply announces what Congress will do and expects everyone to comply. When the same party controls the White House and Congress, the Speaker and Majority Leader of the Senate promote the President's agenda.

Now consider the moment in which we find ourselves. On a myriad of fronts, President Donald Trump is certainly testing and perhaps exceeding his authority. But because he's popular with Republican voters, congressional Republicans won't do anything about it. Just in the last week or so, Trump sent troops into Chicago and Portland, against the wishes of the governors of Illinois and Oregon (remember, the founders actually believed that the states were equal to the federal government). The administration also once again rejected Congress's authority to control finances, declaring its refusal to spend money already appropriated by Congress to punish domestic opponents. Oh, and he unilaterally declared that we were at war with the drug cartels – after he ordered three military strikes on suspected drug ships in the Caribbean, killing 17 people.

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What did Congress do? Nothing.

Texas National Guard troops were deployed to a U.S. Army Reserve facility near Chicago on Tuesday, but a federal judge intervened to temporarily halt the invasion of Portland, which Trump calls “war-ravaged.” In response, White House Deputy Chief of Staff Stephen Miller accused the judge – Trump's protege! — to be just another “far-left democrat” guilty of a “judicial insurrection” in league with domestic “terrorist networks.”

I think this is ridiculous and dangerous nonsense. But maybe you won't. Maybe you think Miller is right. Do you know who could sort things out? I'll give you a hint: it rhymes with “shmongress.”

The judiciary should not be the main check on the executive. There is Congress. The vacuum created by Congress invites the President to fill it. In response, opponents are turning directly to the courts to stop this, dragging the judicial system into political fights for which it is not suited.

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Indeed, if you like everything Trump has done, you should still be angry at Congress, because the vast majority of his “achievements” are written in the fading ink of executive orders. Congress could make it impossible for judges to overturn its tariffs by making them law. By passing the law, Congress could also prevent the next Democratic president from rescinding Trump's orders, just as Trump rescinded those of Joe Biden and Barack Obama and Obama rescinded those of George W. Bush.

The Founders, of course, believed that courts could evaluate the constitutionality of legislative and executive actions. But they also believed that Congress could.

Legislators also take an oath to the Constitution. Indeed, for most of our history they have demanded allegiance to the Constitution. Congress will refuse to pass laws or fund executive action that it deems unconstitutional. And among the things it considered unconstitutional were actions that infringed on its power and authority.

But the highest branch of government today is a parliament of pundits, a congress of cowards far more concerned with scoring party points than with honoring their oaths.

Jonah Goldberg is editor-in-chief of The Dispatch and host of The Remnant podcast.

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