Russ Vought and “Radical Constitutionalism”
Our Constitution Makes Government Inefficient - For Good Reason.
By Mark Strand
Not since Woodrow Wilson has a potential administration openly expressed the progressive notion that the President needs more extraordinary powers at the expense of Congress. However, according to a recent article in the Washington Post, Trump’s potential chief of staff and the head of an unofficial presidential transition, Russ Vought, “is pushing a strategy he calls “radical constitutionalism.” The left has discarded the Constitution, Vought argues, so conservatives need to rise up, wrest power from the federal bureaucracy, and centralize authority in the Oval Office. Presumably, it would appear, by doing the same thing.
President’s seizing the constitutional power of Congress is nothing new. Every Administration, whether Republican or Democratic, further erodes the Constitutional checks and balances designed to protect the country from a dictatorship. President Biden has blatantly infringed on the constitutional prerogatives of Congress by spending hundreds of billions of dollars on executive orders transferring student loans to taxpayers and, just this week, ignoring Federal law by granting amnesty to 500,000 illegal residents married to legal ones. The President is neither allowed to appropriate money nor change existing law to carry out his preferred policy.
Modern presidents change the Constitution by repeatedly violating it. Every time a President takes an unchecked new power, executive power grows, and legislative power withers. When Congress is unwilling to check the President’s violation, the only remaining protection is the Court. The Court must become a target of ridicule to make it compliant, just like Congress.
Like Wilson, however, Russ Vought’s declaration of a “post-constitutional” country directly attacks the system of checks and balances the Founders established to protect individual liberty.
According to the Washington Post:
“Our need is not just to win congressional majorities that blame the other side or fill seats on court benches to meddle at the margins,” he wrote in the 2022 essay. “It is to cast ourselves as dissidents of the current regime and to put on our shoulders the full weight of envisioning, articulating, and defending what a Radical Constitutionalism requires in the late hour that our country finds itself in, and then to do it.”
In practice, that could mean reinterpreting parts of the Constitution to achieve policy goals — such as by defining illegal immigration as an “invasion,” which would allow states to use wartime powers to stop it.
“We showed that millions of illegal aliens coming across, and Mexican cartels holding operational control of the border, constitute an invasion,” Vought wrote. “This is where we need to be radical in discarding or rethinking the legal paradigms that have confined our ability to return to the original Constitution.”
The perspective presented by Vought suggests that the state of affairs is so dire that the President should take action to address the problem, even if it means disregarding constitutional norms such as the process of passing laws through Congress. Vought's views align with those of two of America's most openly progressive Presidents, Theodore Roosevelt and Woodrow Wilson.
Theodore Roosevelt believed that presidents had the authority to take any action that was not explicitly forbidden. He stated, "My belief was that it was not only right but my duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws...I did not usurp power, but I did greatly expand the use of executive power."
Wilson openly challenged the founding principles of the Constitution and the concept of individual rights and liberty. He considered the separation of powers to be an outdated inconvenience, stating that "the President is at liberty, both in law and conscience, to be as big a man as he can."
Wilsonian Progressives believed that all rights have their source, not in nature but in law. According to this view, government, as the source of law, is not the “Laws of Nature and of Nature's God,” as the Declaration proclaims, but is the result of historical development, instinctive rather than conscious.
According to George Will in his classic book "The Conservative Sensibility," in the progressive view, "The state is the creator of liberty because it makes liberty possible; the state is the only source of liberty; it guarantees and protects it. Therefore, the state is entitled to determine liberty’s limits. Stripped of its status as a natural right, liberty is understood as obtained only through the organization of political institutions."
Understand what this means. There is no such thing, in the Wilsonian view, as inalienable rights or natural law. However, as George Will eloquently wrote, the Founders had a different vision:
“Natural rights are affirmed by the Declaration. Majority rule circumscribed and modulated, is constructed by the Constitution. And a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”
This Wilsonian perspective represents a shift in the definition of government. Instead of existing to protect life, liberty, and property, the government's role is broadened to include taking on tasks that individuals are incapable, unwilling, or should not do alone.
This expansion of government responsibilities requires eliminating checks and balances to establish a harmonious and unified government. The principle of separation of powers was not merely unwise; it was absurd because “a living thing cannot have its own organs offset one another.”
However, historical evidence shows that the Founders established a system of checks and balances precisely because they understood human nature. The Wilsonian view, which presumes that history and science always guide us to constant improvement and a unified and agreed-upon future as we learn from past errors and experiences, has been shown to be false, as seen in the tragedies of fascism and communism. Human nature has not changed; therefore, our Constitution, which prevents any individual from amassing excessive power, is necessary to safeguard the rights of individuals.
Presumably, Russ Vought and the people working on Project 2025 at the Heritage Foundation do not believe that giving future President Trump extraordinary powers to get badly needed things done would undermine our constitutional republic. However, good intentions often lead to bad consequences when norms and guardrails are ignored.
There is a certain level of arrogance that believes one knows what is best for "the people," and therefore, any actions taken to achieve a particular vision are justified and even necessary. This is the inherent justification of the Wilsonian way of thinking. They believe that the constraints imposed by the Constitution and the concept of natural rights hinder progress. The efficiency of executive action is seen as more crucial than the Constitutional limitations imposed by Congress and the Courts.
The Founders would have agreed with C.S. Lewis when he wrote: “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive… those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”
The long-term question is, what will Congress do about this? Its authority is diminishing, and it rarely seems to raise objections. As mentioned, every time a President assumes a new power without being checked by Congress or the Court, executive power grows, and the system of checks and balances weakens. Will Congress draw the line before it's too late?
Both Republican and Democratic Presidents engage in similar behavior. Whether it was Barack Obama's "pen and phone" approach that unconstitutionally reassigned appropriations, Donald Trump’s declaring Canada a national security threat to impose steel tariffs, or Joe Biden's massive student loan forgiveness, all result in Presidents assuming powers that are not rightfully theirs.
The Supreme Court is increasingly questioning whether Congress can so easily delegate its powers to the Executive Branch. Justice Neil Gorsuch has aimed to revive the non-delegation doctrine, which states that Congress cannot delegate certain powers to the executive branch.
The American notion of non-delegation can be traced back to 17th-century English philosopher John Locke. According to the second of his Two Treatises of Government, delegating legislative authority to executive or judicial entities violated the trust the people placed in the legislature.:
“The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others....The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.”
Clearly, Congress does transfer its power despite what Locke believed. The Supreme Court is currently considering a case based on the "Chevron defense." In 1984, in Chevron v. NRDC, the Justices ruled that courts should defer to administrative agencies' interpretation of laws when the statutory text is silent or ambiguous. The result has been tens of thousands of regulations costing Americans hundreds of billions of dollars without any say from Congress.
Many on the left, and now some on the right, like Vought, are eager to bypass Congress to get things done. A lot of that can be attributed to Congress's own shortcomings. Both Democrats and Republicans, when in power, have failed to act on critical issues, creating a vacuum that makes the public more receptive to presidential action. Given the nature of power, it is hardly surprising that presidents keep pushing the limits when Congress does not push back.
Not only can Congress protect its power, but the Supreme Court is likely to require it to reclaim its authority when it rules on Loper Bright Enterprises v. Raimondo. So, what should Congress do?
Kevin Kosar argues that Congress needs to control the Administrative State and provides several suggestions on how to do so. He believes that Congress requires more resources to reclaim its power and fulfill its duties. Although conservatives have been reluctant to take these steps, it is necessary to protect liberty and prevent excessive executive control. This entails providing Congress with more staff and funding.
In addition to these measures, Congress could pass the REINS Act, which mandates a review of any regulation that will cost Americans more than $100 million. This act, already proposed and passed by the House in the current Congress, would serve as a check on executive regulations.
But Congress can go even further.
Congress has utilized the Congressional Review Act to repeal regulations enacted by the Administration. Normally, this act is employed to rescind regulations passed in the final months of a President’s term, assuming the succeeding President from the opposition party will sign the legislation, as the President must approve a bill repealing a regulation.
However, Congress should consider making the regulatory process a two-way street. When a President proposes a regulation or executive order that changes federal law, Congress must approve it within 90 days for it to go into effect. The regulation or executive order would die if the President did not win the approval. A Two-Way Street law would create the same process, in reverse, for regulations that are required for laws. With laws, Congress must propose and pass legislation that the President approves. With regulations, the President would propose a regulation or executive order that Congress must approve. It would restore an equilibrium to the lawmaking process. To make the process work, a presidential regulation or executive order would have a privileged status that requires Congress to consider it within 90 days.
In the hypothetical scenario where a future Trump Administration attempts to use the U.S. Army to apprehend illegal aliens forcibly, this would violate the Posse Comitatus Act. A Two-Way Street law would prevent such action unless Congress approved it.
As for another scenario, if President Biden proposed an executive order to allow 500,000 undocumented immigrants to become citizens by marrying a legal resident of the U.S., it would only be enacted if approved by Congress. If the idea gained considerable public support, it would encourage Congress to approve the regulation.
One advantage of a Two-Way Street Act for the President would be that he could essentially force Congress to consider a legislative proposal, much like a parliamentary system. In our system, legislation originates in Congress. But the reality is that a President already essentially originates legislation through regulations and executive orders. The only difference is that Congress does not vote on them.
In effect, Congress would restore the check on executive power. It would not limit judicial review, thus restoring the Constitutional operation of the three branches of government.
The main challenge is whether Congress will prioritize the Constitution over their political party. Often, the President’s party turns a blind eye when Congress’ authority is encroached upon. For instance, regardless of political affiliation, any member of Congress should insist on proposals such as building a border wall or forgiving student loans to be enacted by passing a law.
President Wilson would have argued that the government could be more efficient and more productive if Congress were not in the way. Every authoritarian thinks the same way. The check on the Executive’s power is exactly what prevents a country from slipping into authoritarianism.
The Founders did not intend to establish an efficient government or one that simply catered to the majority. Instead, they crafted a Constitution to limit government and prevent the concentration of political power in any single branch so as to uphold individual rights and liberty.
President Biden might think his executive order can help him win reelection. Russ Vought might think his proposals will allow President Trump to quickly impose his will on a deep state just waiting to block his proposals. That’s not the way the United States works. If proponents of executive power successfully shut Congress out of its constitutional role, and Congress continues to let them, then you won’t have a constitutional republic anymore.
Sadly our constitutional Republic is near death. The founders were right when they told us that only virtuous people were worthy of their work.
"Radical Constitionalism" is a great term if it means being true to it. But you describe something different. "Get things done" is very off-putting to me. We should strive for getting things undone. Moral and physical weakness is a factor in our nation's demise.
This is such an important topic!