Where is Congress?

The Crisis of Abdication (Part Three)

By the time you read this, it will need an update. That is how quickly the examples are piling up.

I set out to write a zoomed-out essay, a broad survey of the primary powers assigned to Congress and the ways Congress has ignored, forgotten, or simply given them away. But every time I look at the news, there is another major controversy. Another edict from the executive. Another agency head improvising authority while Congress sits idle. This do-nothing Congress. This Congress that has been in recess for more days than any other in over 150 years. It is now Easter break and Congress left for vacation while our government still isn’t fully funded. They didn’t get their job done, but maybe they’ll actually see the lines at the airports.

Still, the point is not any one example. The point is how many there are. This piece is broad on purpose. It is a survey of congressional abdication. Some of these examples deserve fuller treatment, but taken together, they reveal a deeper problem: Congress is no longer merely failing in isolated moments. It is falling into a habit. The pattern becomes clearer when the examples are laid out one by one.

War Powers

I start here because this is one of the clearest and most serious examples. At the time I am writing this, we have been at war with Iran for thirty days. Yes, war. Label it however you want, but when the United States military is dropping millions of dollars of bombs on sovereign foreign territory, we are at war. Just imagine how we would have reacted if even one Iranian jet had flown over American soil. You can also imagine how we would react if one of their missiles struck a girl’s school. Even if they said “Oh, it wasn’t us. The other bombs, yes, but not the one that hit the school.” I’m guessing America would consider that an act of war.

This is not some cryptic hidden power of the Constitution. This is basic. This is the one power that everyday Americans still recognize on sight: Congress declares war. Congress raises and supports armies. Congress controls the purse.

Yet the administration never came to Congress for authorization, it sounds like they may come begging for money to fund this unauthorized war, but they still haven’t asked permission to conduct it. We haven’t even gotten to the question of whether or not this particular conflict is wise. The case has never been presented. No one has followed the constitutional process.

So, where is Congress on war powers? Absent.

Tariffs

It took a year, but the courts finally stepped in to remind us all that tariffs are taxes and the power to tax belongs to Congress. I don’t recall Congress protesting too much, and it took a lawsuit from a toy company to “undelegate” the power that was never delegated in the first place. Tariffs are taxes. Taxes belong to Congress. Regulation of foreign commerce belongs to Congress too. That is not controversial, unless one happens to be in office and would prefer not to ask.

Congress was largely on the sidelines and still remains there. More tariff fights are on the horizon.

So, where is Congress on tariffs? Absent.

Alienage

Congress has plenary authority over naturalization and sets the legal framework for alienage. That’s lawyer talk for immigration. Congress writes the rules for citizenship and establishes the legal structure governing non-citizens. The executive enforces those laws. It does not own the field.

Modern practice too often treats immigration, removal, and border policy as though they were matters of inherent presidential authority. They are not. Enforcement discretion is real, and agencies exercise delegated authority, but that does not transform the subject into a domain of free-floating executive power. Congress writes the rules. Congress sets the framework. Congress decides what the law is.

And if that framework is producing abuses, lawlessness, or lethal consequences, then Congress should not stand there blinking like it just heard about the subject yesterday. If Immigration and Customs Enforcement officers are shooting American citizens dead, it may be time for Congress to remember that this area of law exists because Congress created it.

So, where is Congress on immigration? Absent.

Elections

I don’t want to hear anything more about executive orders about elections. When it comes to elections, the executive branch controls nothing in the ordinary constitutional sense. Even Congress has only limited authority here. The Constitution gives the states primary control, with Congress holding limited power to regulate the times, places, and manner of federal elections. The executive has no general constitutional role in election administration. None.

Yet every cycle brings fresh pressure. More coordination. More implied federal control. More executive assertions in an area that is wholly absent in Article II. Congress may legislate within its limited constitutional lane. The states may administer elections within theirs. But the executive has no place in this field. And when those boundaries begin to blur, Congress needs to say so. Instead, too often, it says little and does less.

So, where is Congress on elections? Absent.

Agency Closure

Temporary government employees cannot chainsaw agencies. The executive cannot eliminate them. Agencies are brought into this world by Congress and they can only leave this world by Congress.

What agencies has Congress created? You name it, the CIA, EPA, FBI, IRS, all your favorites, even USAID and the Department of Education. Congress created them all. Congress funded them. Congress defines what they do.

Here’s the catch, once created, they are basically run by the executive branch. So a President can cut their budgets, shrink them through attrition, divert their resources, or ignore their statutory mandates. But a President cannot abolish a statutory agency because he finds it inconvenient, and he cannot refuse to spend money Congress has lawfully appropriated simply because he disagrees with the policy. That is called impoundment. That is a one-man line-item veto through noncompliance. That is legislative power exercised by the wrong branch.

Congress creates agencies by statute. It funds and defines their functions. That is how our system works. The executive does not get to simply wave agencies away. When Congress shrugs at this, it is consenting to the disappearance of its own role.

So, where is Congress on agency closure? Absent.

Civil Service

It’s generally a good idea to have workers who know how to do their jobs. That’s the basic idea for the civil service. Before it was created, a new administration would just reward their cronies with government jobs. Those workers didn’t have to know how to do anything and often they weren’t expected to do anything. This is not the best system for a functioning government. So, Congress created statutory civil service protections. Those protections were meant to curb patronage, preserve competence, and ensure that government did not become a spoils system for whichever administration happened to be in office. They were legislative judgments, not bureaucratic accidents.

When an administration rewrites those protections through administrative maneuver, mass reclassification, or executive fiat, it is not merely adjusting personnel policy. It is doing by executive action what should require legislation. The power belongs to Congress. The same is true when whistleblower protections created by Congress are gutted in practice through administrative redesign. Congress built those protections. Congress could defend them. But once again, Congress mostly watches while the executive tests how much of the statutory structure can be hollowed out without formal repeal.

So, where is Congress on civil service? Absent.

Minting

Yes, minting. Congress does that.

Article I gives Congress the power to coin money and regulate its value. The executive has no independent monetary authority except through statute. That is why the penny still exists even though Treasury stopped producing it. Treasury may suspend minting under existing law. It may not abolish the penny. Only Congress can do that.

And now we have the 250th anniversary coin controversy, with members of Congress suddenly rediscovering that there are laws and restrictions governing what can and cannot appear on the nation’s money. Good. Better late than never. But it is remarkable how quickly Congress can remember that it legislated in this field when the controversy becomes gaudy enough. No one seemed particularly eager to remind the public that the penny cannot be canceled by executive order. But now that a commemorative coin may carry the face of a living President, suddenly Congress remembers it once passed laws about money.

What better way to celebrate the 250th anniversary of throwing off the yoke of a king than by putting the current living President scowling on a coin?

So, where is Congress on minting? Absent.

Conclusion

In one area after another, the power at issue belongs to Congress, yet Congress says little, does less, and lets the executive fill the space. Or the executive moves in and Congress steps aside.

That is not what the Framers intended. More importantly, it is not how this constitutional republic is supposed to function.

This is not a failure of the Constitution.

It is a failure to use it.

Todd Sloan is a lawyer currently running for Congress as an independent on the Upstate ballot line in NY-24. ToddSloanForCongress.com

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