Q&A: Can Congress and courts still check Trump's executive overreach? (Part Two)

Editor's note: From tariffs to trade, and from birthright citizenship to immigration and border security issues, U.S. President Donald Trump signed over 150 executive orders in just over four months since his inauguration on January 20, 2025, according to the Federal Register, the official journal of the U.S. government. By comparison, his predecessor, Joe Biden, signed 162 executive orders during his entire four-year presidency.

To make sense of Trump's aggressive use of executive orders and its possible impact, CGTN interviewed Mitchel Sollenberger, a political science professor at the University of Michigan-Dearborn and author of four books examining the reach and limits of U.S. executive powers, and David Super, a law and economics professor at Georgetown University Law Center, whose research focuses on U.S. administrative law, constitutional law, legislation and others.

Below is the second part of CGTN's two-part interview via email with the two U.S. scholars. The conversations have been lightly edited for clarity and conciseness. 

CGTN: Why has the U.S. system of checks and balances seemed to fail to effectively restrain the Trump administration? What roles would Congress and the Supreme Court have played here? What factors have limited their ability to serve as effective checks?

Mitchel Sollenberger: As I said, I place a great deal of blame on Congress and the courts.

I think in recent decades, partisanship has greatly impacted Congress. Both political parties are not as ideologically diverse as they were 30 or 40 years ago. This has resulted in polarization between the parties and therefore makes it harder for Congress to come together not only to pass legislation that might "check" the president or place limits on the executive branch, but as we saw during Trump's first term, it has effectively rendered the impeachment process a dead letter of the Constitution. So, in a nutshell, partisanship has resulted in members of Congress rallying around their president and not taking seriously their institutional responsibilities to the legislative branch or the Constitution.

With the judiciary, particularly the Supreme Court, you see the success that the conservative legal movement has had on the makeup of the courts. I believe 6 out of the 9 justices on the Supreme Court are somehow associated with the Federalist Society, which is a conservative legal organization that rose up during the 1980s to challenge the established liberal legal order that dominated. These conservative jurists have helped usher in a number of judicial rulings that have benefited the presidency, from Free Enterprise Fund v. Public Company Accounting Oversight Board and Seila Law v. Consumer Finance Protection Bureau (which has strengthened the president's appointment/removal power) to Zivotofsky v. Kerry (which provided presidents with recognition authority).

David Super: Courts' ability to check the administration's unlawful actions has been constrained somewhat by a strong tradition of assuming that the administration is trying to act lawfully and that its lawyers are honest with the courts. That clearly has not been true under this administration, and we have seen some signs that the lower courts, and even the Supreme Court, are giving the administration less deference than they have traditionally done. But some judges likely are worried that their credibility could be damaged badly if they order the administration to stop doing something and the administration simply refuses.

Congress has less to do because the U.S. already has laws on the books prohibiting much of what President Trump is doing. It would accomplish little to pass a second law prohibiting actions that are already unlawful. President Trump has thin majorities in both chambers of Congress, and his strong hold on his party has made Republican members of Congress reluctant to criticize him directly. If the administration's inconsistent management of the economy tips us into a recession, congressional Republicans may feel more comfortable complaining. But, again, we already have laws against many of his most controversial actions.

CGTN: Some analysts argue that President Trump may become the most powerful U.S. president in decades. In the long term, what lasting impact would his governance model have on America's constitutional traditions?

Mitchel Sollenberger: I think that's true, but it also fails to capture the context and movement of presidential power over time. At any point in time from Teddy Roosevelt to Donald Trump, one would be right in saying that the current president was the most powerful president ever.

My point is that presidential power has been ratcheting up over the last 100-plus years. The U.S. has been experiencing a long and slow decline of congressional powers and authority while generally seeing the judiciary defer to presidential expansions of power.

Certainly there are exceptions to that rule. One could look at the 1952 Youngstown Sheet & Tube v. Sawyer decision for the Supreme Court or the congressional pushback to presidential power post-Watergate (e.g., War Powers Resolution, etc.). However, those types of cases or actions are more anomalies or deviations from the general trend of things.

As far as Trump's lasting impact, I think it all depends on the results of these lawsuits and other actions occurring from his administration's actions. I think a great number of people are watching closely if we might see an actual constitutional crisis. I know some believe we have experienced it. However, my own understanding of a constitutional crisis is where President Trump takes action which is challenged by the Congress or judiciary. In the courts, if the challenges go all the way to the Supreme Court and it issues a final determination [against the president], which Trump ignores, then one would have a constitutional crisis. That would be a clear breakdown of the fundamental governing compact that the framers created.

I'm not sure how one could after Trump put the presidency back under the Constitution. I would hope people would seriously consider the need to revamp or create a new Constitution which limits and undoes a great deal of the decisions and actions that have created the presidency we see today.

David Super: Because the U.S. has worked for over two centuries under a pre-industrial Constitution written to respond to very different problems, a great deal of our constitutional order has been built around informal norms, deference, and trust. President Trump has demonstrated that he does not feel bound by those norms and is even willing to defy clear commands of the constitutional text.

This likely will prevent any reconstruction of any norms-based system even after he leaves office. The result could either be a new constitutional consensus in this country backed by laws to prevent a recurrence of President Trump's actions or further divisiveness and instability.

It really will depend on whether conservative business leaders feel it is in their self-interest to abandon a Trump-led Republican Party to restore stability and whether progressives are willing to negotiate seriously with them.

Read more:

Q&A: Can Congress and courts still check Trump's executive overreach? (Part One)