The Surrender

Every time a president pushes the limits of his authority, the usual suspects line up to recite the same rogues' gallery: Lincoln suspending habeas corpus, FDR packing the Court, Obama's DACA, Trump's travel ban, Biden's student loan forgiveness. They tell a tidy story of ambitious executives grabbing power, and they are not wrong. But it is incomplete. The deeper story-the one that explains how we got here, and the one you almost never hear-is about Congress. Not about what the president did, but about what Congress did not do. Piece by piece, decade by decade, the branch the Founders expected to dominate has voluntarily handed its authority to the executive. Not because it was forced. Because it was easier.

The Branch That Was Supposed to Rule

Article I of the Constitution is not accidentally first. The Framers put Congress ahead of the president and the courts for a reason. They had just fought a war against a king. They were not about to create another one. James Madison wrote in Federalist 51 that "in republican government, the legislative authority necessarily predominates." John Adams called for "a government of laws, and not of men." The law-making branch was supposed to be the center of gravity. So what happened? How did the president become the dominant figure, issuing executive orders that rewrite statutes, launching military strikes without a declaration, and spending money Congress never appropriated? The answer is not that presidents stole the power. It is that Congress gave it away.

The Great Delegation

Start with the administrative state. The Constitution assigns Congress the power to "make all Laws which shall be necessary and proper." That is an active verb: make. Not "ask the executive branch to figure it out." But that is exactly what Congress has done. The Clean Air Act does not set emission limits; it tells the EPA to set them "as may be appropriate." The Clean Water Act tells the Army Corps of Engineers to define "waters of the United States." The Securities Exchange Act tells the SEC to write rules that are "necessary or appropriate in the public interest." In each case, Congress writes a vague goal and then hands a pen to an unelected bureaucrat. The bureaucrat writes a rule. That rule has the force of law. You can be fined, imprisoned, or shut down for violating it. And yet no elected representative ever voted on the specific language.

This violates the nondelegation doctrine-a constitutional principle that says Congress cannot give away its legislative power to another branch. The Supreme Court used to enforce it. In 1935, it struck down two New Deal laws on nondelegation grounds. Then it effectively abandoned the doctrine. Since then, Congress has delegated with abandon. The result is that we no longer live under a government of laws passed by our representatives. We live under a government of regulations written by the executive branch. That is not what the Constitution describes. It is a slow-motion coup-not by a single president, but by a compliant Congress.

The War Powers Surrender

Nowhere is the surrender more stark than in the power to send Americans into combat. The Constitution gives Congress the sole power to declare war. James Madison argued that this was essential: the executive "is the department of war," but the legislative "is the department of peace." The president commands the military; Congress decides when to use it. That separation eroded over time. But the critical moment came in 1973, when Congress passed the War Powers Resolution over President Nixon's veto. The law was supposed to rein in the executive. It requires the president to notify Congress within 48 hours of committing troops and to withdraw them after 60 days unless Congress authorizes the mission. Read that again. The law explicitly permits the president to commit troops for 60 days without congressional approval. What was supposed to be a check became a license. Congress formally acknowledged that the president could start a war-as long as he ended it within two months.

Since then, every president has treated the War Powers Resolution as a ceiling, not a constraint. They send troops, notify Congress, and dare the legislature to stop them. Congress rarely does. The last formal declaration of war was in 1942. Since then, the United States has fought in Korea, Vietnam, Iraq, Afghanistan, Libya, Syria, and a dozen other conflicts-all without a declaration. That is not executive overreach. That is legislative abdication.

The Power of the Purse

The Constitution also gives Congress the power of the purse. Article I, Section 9 says: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." This is the ultimate check. If the president does something Congress does not like, Congress can simply refuse to fund it. But Congress has given this away too. For decades, Congress has passed massive omnibus spending bills that lump thousands of pages of funding into a single take-it-or-leave-it package. Individual members have no real say. The president gets a blank check for entire departments. And when the president wants to spend money on something Congress never authorized-like student loan forgiveness-Congress has no mechanism to stop it.

Even the Impoundment Control Act of 1974, passed to prevent presidents from refusing to spend appropriated money, has been twisted. That law allowed the president to propose rescissions-cancellations of spending-subject to congressional approval. Presidents from Nixon onward simply ignored the approval part. They spent what they wanted, withheld what they did not. Congress did nothing. The power of the purse is now effectively in the hands of the executive. Congress still passes appropriations, but it has no control over how the money is actually spent. That is not how the Founders designed it. That is how Congress allowed it to become.

Why Congress Surrendered

The question is: why? Why would a coequal branch of government willingly hand over its constitutional authority? The answer is simple: political convenience. Passing a specific, detailed law is hard. It requires votes, debate, compromise, and accountability. If the law has unintended consequences, the voters blame you. If the law is unpopular, your opponent uses it against you. Delegating the hard work to the executive is easy. Let the president take the heat. Let the bureaucracy write the rules. Then, when something goes wrong, you can blame the other guy. You get to claim credit for the popular outcome and dodge responsibility for the failures.

That is a powerful incentive. And as Thomas Sowell taught us, incentives matter. Congress has strong incentives to offload power and weak incentives to retain it. So it offloads. The result is a government that increasingly functions like a monarchy with a rubber-stamp legislature. The president issues orders. The bureaucracy issues rules. Congress holds hearings and tweets about it. Nothing changes.

The Way Back

There is no shortcut. You cannot simply elect a different president and expect the problem to solve itself. The problem is not the person in the White House. The problem is the branch that refuses to act like a coequal branch of government. Restoring the constitutional balance requires Congress to take back its power. That means enforcing the nondelegation doctrine by passing specific, narrow laws instead of vague authorizations. It means using the power of the purse to cut off funding for executive actions it disagrees with. It means reasserting the power to declare war by refusing to fund unauthorized military engagements. And it means rejecting the idea that the president can spend money Congress never appropriated.

This is hard. It requires a Congress that actually wants to govern, with members who care more about their constitutional duty than their re-election prospects. But it is the only way. The Founders built a system of separated powers on the assumption that each branch would defend its own turf. They did not anticipate that one branch would willingly hand its turf over to the other. The surrender has gone on long enough. It is time for Congress to take back what it never should have given away.