SAM MAGAZINE 3/25 | 17 – something he now lacks and is very unlikely to gain in the midterm elections. Even worse from the MAGA perspective, there is a very real chance that the Republican Party, already so splintered that it finds reaching agreement on any proposed legislation difficult, will lose its majority in the House of Representatives, handing power over to a Democratic Party that, though in profound disagreement with itself about any positive agenda, is absolutely united in opposing anything the President might propose. So where does this leave the President and the MAGA agenda? With Congress effectively stalemated, from this point forward the President will need to rely on executive power, under existing legislative authority, to push the MAGA program ahead. Limits of executive power The executive power at his disposal is not inconsiderable. But Constitutionally, it is also not unlimited. Exactly what the limits are, or will turn out to be, remains to be seen. By design, the U.S. Constitution deliberately pits the various institutions of government against each other, leaving unclear the boundaries of each institution’s power. The Constitution is, in the words of one famous legal scholar, “an invitation to struggle.” James Madison’s logic, as he wrote the Constitution, was that the struggle between governmental institutions – House, Senate, Presidency, Courts – would prevent any of them, singly or in combination, from amassing the power necessary to behave tyrannically toward the American people. True, in unusual political circumstances (like those of the past nine months), Congress has been known to temporarily surrender much of its power to the Presidency. Those of us with long memories will remember that we also saw this during President Ronald Reagan’s first months in office, and, before that, in the wake of President Lyndon Johnson’s 1964 landslide victory over Barry Goldwater. In President Johnson’s case, the election also gave his party a stunning twothirds majority in both the House and Senate, offering him a wide window of opportunity to push forward with his transformative “Great Society” agenda. But as a presidential term progresses – particularly if it is a second, and therefore final, term – the ability of a president to intimidate Congress inevitably wanes. Midterm elections typically weaken the governing party. And eventually, Congress begins to regain its courage and to reassert itself, pushing back against the president. The federal courts, too, play something of a limiting role. Regardless of the “conservative” or “liberal” political philosophy of individual justices, the courts’ natural tendency in the American system is to oppose the accumulation of power by whichever of the two political branches the justices see as dominant. Even before the 2024 elections returned Trump to office, the federal courts – or at least a majority of the members of the Supreme Court – appear to have concluded that the Executive branch had amassed too much regulatory power, and that substantial amounts of the regulatory authority now resting in the hands of Executive branch agencies needed to be returned to Congress. Interestingly, so long as the MAGA agenda involves the dismantling of Executive branch agencies and the reduction of Executive branch administrative capacity, the President may be cautiously optimistic about the Court giving him continued running room. To What needs to be appreciated, however, is that this is the last significant piece of legislation that President Trump will ever get passed.
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