America may be facing a constitutional crisisâbut not the one everyoneâs talking about.
Commentators are sounding alarms that the Department of Justice has lost its independence by aligning with Donald Trumpâs political agenda. But the Constitution doesnât require DOJ independence. Itâs an executive agency. The Constitution gives the President the power to enforce federal law.
The crisis isnât that the President has too much power over executive agencies. The crisis is that executive agencies themselves have too much power.
And this crisis isnât new. Remember when Attorney General Eric Holder called himself âthe Presidentâs wing-manâ? President Biden has pressured DOJ leadership, too. And how about that time Nixon purged the DOJ? The supposed ânormâ of DOJ independence is just thatâa norm, not a rule of law, and not one thatâs been followed consistently.
Whatâs new is that liberals are upset. But âliberalâ isnât Latin for âthe federal government should fix everything.â If you believe in checks and balances, they have to apply even when your side is in chargeâand especially when itâs not.
Classical liberalism reminds us that the real crisis occurs when the administrative state has too much unchecked power. For a century, Congress has steadily delegated broad lawmaking authority to executive agencies. Now these agencies write rules, enforce them, and even resolve legal disputesâfunctions the Constitution assigns to separate branches. This is the Constitutional crisis.
This crisis didnât start with Trump. It started with the New Deal, when Congress began outsourcing hard decisions to the executive branch. And it continues because Americans stopped questioning whether these powers should exist at all. Civics has devolved into a winner-takes-all power grabâa cycle that only ends when we return to first principles.
James Madison warned in Federalist No. 47 that combining legislative, executive, and judicial power âmay justly be pronounced the very definition of tyranny.â Yet thatâs now routine. The DOJ issues guidance documents with binding legal effect. It prosecutes based on discretionary interpretations. And it negotiates âconsent decreesâ that reshape public policyâwithout clear statutory authority, public input, or meaningful judicial review.
This is governance by fiat. And itâs becoming the norm. The Constitutional problem isnât whoâs in charge of the enforcersâthe Constitution literally says that the Presidentâs job is to enforce the laws. The real crisis is that executive agencies have taken on powers that properly belong to Congress.
Some defend the administrative state by pointing to complexity: modern problems require expert solutions. But expertise should inform legislationânot replace it. In West Virginia v. EPA, the Supreme Court ruled that agencies canât make major policy changes without clear congressional authorization. In Loper Bright v. Raimondo, the Court overturned Chevron deference, ending the presumption that agencies, rather than judges, should interpret ambiguous laws. Thatâs a start. But the real fix has to come from Congress.
Lawmakers must stop punting hard decisions and start reclaiming their constitutional role. One model already exists: the Regulatory Accountability Act, a bipartisan bill co-sponsored by Senators Warren and Paul. It would require Congress to reauthorize major regulations regularly. That idea should extend to DOJ authority, too. Discretionary enforcement powers should come with expiration dates. Consent decrees should face meaningful judicial review. And Congress should hold real oversight hearingsânot political theatre.
Yes, this would require Congress to work harder. And yes, it might mean less time campaigning. But the system wasnât designed for convenience. It was designed for accountability.
Donald Trump promised to reduce the size of the federal government. Heâs targeted some agencies, like the Department of Education. But heâs done far less to restrain agencies that could advance his own goals. The true test of principle is whether youâre willing to limit power even when itâs your own.
Whether you are a Republican or a Democrat, if you believe in limited government, prove itâby showing restraint when youâre the one in power. Demand sunset clauses, judicial review, and real legislative oversight. Because the next time the seesaw tilts, it might not swing in your favor. The Constitution wasnât written to empower the winners. It was written to restrain everyone. Thatâs how liberty survives.
Seth C. Oranburg is a law professor at the University of New Hampshire Franklin Pierce School of Law and director of the Program on Organizations, Business, and Markets at NYUâs Classical Liberal Institute.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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