The Constitution makes Congress the first branch among equals. But the past decade has witnessed a dangerous trend: a Supreme Court that expresses deep suspicion of Congress’s competence and motives. This distrust should be worrying for anyone who cares about the most democratic branch’s ability to serve as a check on presidential power and confront an ever-growing list of policy challenges.
Let’s begin with this past Supreme Court term. In Trump v. Mazars the Court evaluated subpoenas that three House committees issued to private corporations, asking for President Trump’s personal financial documents. The Court’s decision remanded the case to a lower court, with instructions that forged a middle path between the polar-opposite arguments advanced by Congress and Trump. But on its own terms, the Court’s opinion sets out a new rule calling for Congress’s motives to be closely scrutinized, asking lower courts to “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President” and be “attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” In other words, the Court invites close scrutiny of congressional subpoenas. After Mazars, courts need not defer to Congress’s assertions of what documents it needs and why.
The Supreme Court has also taken to characterizing Congress as less democratic than the executive branch. In Seila Law v. CFPB, the Court found that congressionally imposed limitations on the president’s ability to remove the head of the Consumer Financial Protection Bureau were unconstitutional. The majority emphasized the importance of presidential rather than congressional control of the bureaucracy. Congress poses a “special threat to individual liberty,” the Court wrote, while “the Framers made the President the most democratic and politically accountable official in Government” on the grounds that “only the President (along with the Vice President) is elected by the entire Nation.”
This elevation of the president as more democratic than Congress misreads the constitutional design. The president has never been popularly elected—the Electoral College prevents a strictly popular vote from deciding presidential elections. House members, by contrast, have been popularly elected since America’s founding, and Senators have been popularly elected for more than a century. The collection of legislators from all 50 states might well represent the nation as a whole better than a single president. Congress is imperfectly democratic, most notably on account of the Senate’s equal representation of states, regardless of their populations. But it is hard to argue that Congress’s democratic deficit is worse than that of the presidency. This is especially so when presidents can take office after losing the national popular vote—as has been the case for two of the last three presidents, including Donald Trump.
The contemporary Court’s distrust of Congress is far from new. A similar attitude carried the day in Shelby County v. Holder, the 2013 decision in which the Court struck down a key portion of the Voting Rights Act. Congress’s power is at its apex when it comes to enacting legislation to enforce the post–Civil War Amendments, including in protecting voting rights. In overwhelmingly reauthorizing the Voting Rights Act in 2006, Congress gathered 15,000 pages of evidence and held extensive hearings. The reauthorized law retained the requirement that certain jurisdictions with a substantial history of voting discrimination submit proposed changes to election laws to the Department of Justice or a federal court for preclearance prior to implementation. Five Justices found the legislative record insufficient to justify this extension. They refused to trust Congress’s determination that extra scrutiny was needed to prevent racial discrimination in voting in states with long histories of precisely that sort of discrimination. And yet Congress’s assessment of the risks to fair voting unfortunately have been vindicated by states’ aggressive use of voter-suppression tactics post–Shelby County.
Distrust of Congress also emerges in the Supreme Court’s treatments of federal-agency power. Last year, in an influential dissent, Justice Neil Gorsuch sought to limit Congress’s power to delegate authority to federal agencies. Courts have long deferred to congressional decisions to sometimes create detailed legislative schemes themselves and to other times decide general principles themselves but delegate the details to agencies. Delegating to agencies often makes sense as a matter of policy, given the complexity of the American economy and society. And the Framers did not view the Constitution as limiting Congress’s ability to delegate. But Gorsuch takes a distinctly dim view of delegation: as a form of passing the buck, allowing Congress to legislate without assembling the necessary “social consensus” and to “claim credit” for acting while leaving agencies to sort out the details.
Congress has good reasons to seek out presidential tax returns, to protect voting rights, and to delegate power to agencies. Congress’s members are far more representative of the American people than are the Supreme Court’s nine justices. In failing to trust Congress, the Court gives greater weight to its own judgment than that of the more democratically accountable Congress.
Some might argue that the Supreme Court’s skepticism of Congress is justified on the ground that partisan polarization often impedes Congress from acting in the public interest. This may have been part of the Court’s motivation in denying Congress immediate access to Trump’s financial records. During oral argument, several justices seemed concerned that allowing Congress unrestrained subpoena power would lead to harassment of the president.
Congress is far from perfect, of course. But the difference between harassment and accountability is in the eye of the beholder, especially in these polarized times. More broadly, partisan hardball cannot provide an adequate justification for courts to cut back on congressional power. Congress has all the power that the Constitution and relevant precedents grant it. That power should not wax and wane based on courts’ subjective assessments of Congress’s performance.
The Supreme Court’s skepticism of Congress is especially striking when read alongside its giving the benefit of the doubt to other actors. While erecting hurdles to congressional access to presidential tax returns, the Court allowed the Manhattan District Attorney to issue a grand-jury subpoena to the accounting firm Mazars USA. Taken together, these decisions reveal a Court that worries that Congress, a co-equal branch of the federal government, is more prone to misbehavior than a single state’s grand jury.
The Supreme Court’s attitude toward congressional investigations also stands in contrast to its deference toward other sorts of government investigations. As Justice Ruth Bader Ginsburg commented during oral argument in Mazars, if a police officer “stops a car and gives the reason that the car went through a stop sign, we don’t allow an investigation into what the [officer’s] subjective motive really was.” The Court, she reasoned, has no business “distrusting Congress more than the cop on the beat.”
Most of all, the Supreme Court has taken a charitable view of the presidency alongside its suspicious view of Congress. Compare the cases we describe above to Trump v. Hawaii, in 2017. As Justice Sonia Sotomayor wrote in dissent to the Court’s majority opinion overturning an injunction against Trump’s eight-country travel ban, the record painted a “harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” But a majority of the Court refused to consider the motives underlying the president’s actions, even as the Court routinely scrutinizes congressional motives when Congress tries to exercise powers that were long taken for granted.
What can Congress do in the face of this judicial distrust? The answer differs depending on whether Congress is acting in its investigatory or legislative capacity.
In its investigatory role, the Georgetown University law professor Josh Chafetz has persuasively argued, Congress must use tools at its own disposal rather than trust the courts to back it up in its fights with the executive. Congress can condition funding on certain disclosures, write transparency requirements into legislation, or even threaten to hold members of the executive branch in contempt. The appropriate tool will vary based on the circumstances, but Congress should not rely on the courts as a partner in holding the executive branch accountable.
In its legislative capacity, Congress should be prepared for courts to read its handiwork in a maximally critical way. Practically speaking, Congress must do its best to safeguard statutes in the face of a skeptical Supreme Court. This includes building exhaustive records supporting its legislative efforts and ensuring that its approaches to solving public-policy problems are far from the boundary of constitutionality. Even heeding all of this advice might at times not be enough, as Shelby County proved.
As important as judicial distrust of Congress has been in recent years, it might become even more potent in the years ahead. The biggest challenges we face—climate change, immigration, criminal justice—call for bold legislative solutions. The difficulty of legislating means that these solutions won’t come easily. A Supreme Court that distrusts Congress as deeply as this one has in recent years poses one more obstacle to the policy changes that we so sorely need. If judicial distrust hems in Congress’s ability to craft creative solutions to national problems, we will all be worse off for it.