The Optimists

By Nick Catoggio

Tuesday, June 30, 2026

 

I think it was George Will who said that five of the most beautiful words in the English language are Congress shall make no law.

 

Any classical liberal would agree. Freedom requires restraints on authority: That’s the Founding vision, as you might expect from colonists who’d just deposed a monarch. That the people might flourish, America’s new government would be barred from wielding monarchical powers itself. With respect to cherished rights, Congress shall make no law.

 

The problem, as America stumbles toward its 250^th birthday, is that that phrase has become as descriptive as it is prescriptive. A legislature hyperpolarized by partisanship and teeming with cowards, performance artists, and radicals doesn’t do much anymore except pass last-minute shutdown-averting omnibus spending bills. Pick any subject (almost) that’s crying out for a policy solution and you may rest assured: Congress shall make no law.

 

This morning’s Supreme Court ruling on birthright citizenship was a surprise, taking a more prescriptive approach to federal power on that issue. I thought the court would rule that the executive has no power to restrict natural-born citizenship, but that the legislature might under Section 5 of the 14^th Amendment. Nope: According to the majority, being born on American soil means you’re a U.S. citizen under the 14^th Amendment, and that’s that.

 

Congress shall make no law to the contrary, and neither shall the wannabe monarch in the White House.

 

But most of the recent landmark court rulings that have roiled the left and right weren’t so aggressive. They were based on interpretations of statutes, not the Constitution. If Americans don’t like those rulings, all they have to do to overturn them is have their representatives amend the relevant statutes.

 

Our own Sarah Isgur made that point yesterday to (mostly Democratic) partisans whining about recent holdings that didn’t go their way. “Once again, nearly all of these SCOTUS decisions can be changed by Congress: late-arriving mail ballots, partisan gerrymandering, student-loan debt forgiveness, asylum at the southern border, [Temporary Protected Status] designations, tariffs …” she wrote on X. (My links, not hers.) “If you don’t like the decision: LOBBY CONGRESS!”

 

Simple, straightforward, classically liberal.

 

But here’s where we run into the descriptive problem. In an era of hyperpolarized negative partisanship, in which the filibuster routinely paralyzes the Senate except in rare cases of supermajority consensus, in which members of the ruling party fearfully forfeit their authority over matters like war to an autocratic president, and in which Americans themselves have lost nearly all confidence in their legislature, of what use is it really to tell people to “LOBBY CONGRESS”?

 

Congress shall make no law in 2026. Congress barely exists in a meaningful sense. What’s the point of lobbying it?

 

And if lobbying it is pointless, what then?

 

A dilemma.

 

The misfortune of the Roberts court is having to preside at a time when every other player in the constitutional order has abdicated its civic duty. The president wants to be king; Congress, under Republican leadership, has done its realistic best to accommodate him; and the American people don’t much care.

 

Case in point: As I write this, reports of no fewer than three new presidential scandals are circulating. The construction of Trump’s new ballroom was apparently commissioned under a no-bid contract, “an unusual arrangement that sidestepped typical contracting procedures designed to control costs,” and not the first such case recently in which the White House has been involved. Meanwhile, the president’s sons—and Commerce Secretary Howard Lutnick’s—are getting rich(er) by coincidentally partnering with firms tied to a billion-dollar mining deal that Trump and Lutnick negotiated on behalf of the United States with Kazakhstan.

 

And the pardon racket around the West Wing has somehow grown more brazen than it used to be, allegedly, with federal clemency now essentially for sale. “It is general knowledge in our practice that for $2 million, you can have a pardon,” one white-collar lawyer told The Atlantic. “The clients come to us and tell us, I’ve been told I need to go hire this specific person, and [then] I will get a pardon.” Some attorneys have reportedly stopped advising clients in such matters for fear that the next Democratic administration will pursue them criminally over it.

 

Outrageous, preposterous, almost literally unbelievable corruption—and Congress won’t do a thing about it as long as it remains under GOP control. Even under Democratic control, with impeachment a dead letter, Trump will suffer no consequences beyond the embarrassment of oversight hearings. Nor is there any great public outcry spurring lawmakers on to stop the sleaze: The president is unpopular, sure, but we all know that has more to do with the price of beef and gasoline than with him turning the White House into a fascist Tammany Hall.

 

And so we arrive at the dilemma for the court: If other constitutional checks on executive power have collapsed, what duty does the judiciary have to pick up the slack by scrutinizing executive power more skeptically? If judges are the only civic actors left who are willing and able to prevent authority from accumulating in a renegade presidency, should that influence how they interpret law?

 

“Absolutely not,” conservatives would say.

 

A judge who reads statutes by reasoning backward from the outcome he or she desires isn’t “judging” in any meaningful sense, and certainly isn’t doing so impartially. If the law grants the president power to end temporary protected status for Haitian refugees, whether the president in question is George Washington or Donald Trump doesn’t matter. The Supreme Court should be all but indifferent to the practical effect of its rulings; its civic duty consists of nothing more than saying, in good faith and without bias against either party, what it believes a constitutional provision or statute to mean.

 

A court that begins fiddling with its jurisprudence to “correct” for perversions of the constitutional order by other branches will inevitably create perversions of its own. Imagine how hamstrung some future, more civic-minded president might be if the justices began ruling reflexively against every claim of executive authority by Trump, meritorious or not, in the name of checking him.

 

The liberal response.

 

To all of that, I suspect liberals would say this: It’s one thing for a court to strive for impartiality and to faithfully apply precedent when weighing presidential power, even when the president in question is a churlish authoritarian who’s barely in touch with reality.

 

But it’s another thing entirely for that court to expand presidential power under those circumstances, with Trump guaranteed to abuse every ounce of new authority it grants him.

 

That’s what the Roberts court did in 2024 in its horrendous decision granting presidents criminal immunity when exercising their “core” powers, knowing how the Republican nominee that year would exploit the ruling if he returned to the White House. (I refer you once again to the pardon bazaar currently being run out of the Oval Office.) And it’s what they did again yesterday, albeit this time for more defensible constitutional reasons, in overturning longstanding precedent to rule that the president can fire officials at most “independent” agencies for any reason, even if Congress stipulates that termination can only be for cause.

 

If you believe, as most conservatives do, that there’s no such thing as an “independent” administrative agency in a government in which power is shared among three and only three branches, it makes sense that officials at those agencies should be removable by the head of the branch in which they serve. But there’s no way around the fact that Trump will take this decision as license to replace conscientious bureaucrats with the most lowbrow, incompetent, slavishly loyal postliberal chuds he can find. It’s a green light from SCOTUS to build out the kakistocracy.

 

As of yesterday, “independent” officials are now accountable to an executive who revels in his own unaccountability.

 

Expanding presidential power at the very moment that the presidency is occupied by the most malevolent, corrupt cretin to ever hold the office feels less like an outcome remorselessly dictated by jurisprudential logic than, well, a choice. Rather than revisit the merits of the “unitary executive theory” in light of Trump’s abuses or at least delay developing the doctrine until he’s out of office, the court has plowed ahead unbothered. If you want a judiciary that’s indifferent to outcomes, including outcomes that will clearly accelerate America’s transformation into a third-world country, boy howdy have you got one.

 

Of course, in the court’s defense, they’ve also plowed ahead in restoring power to Congress in important contexts—the tariff decision, for instance, or striking down Joe Biden’s student debt forgiveness order. Each branch is supreme in its own sphere! It’s just that when the president is promiscuous in exercising his power while the legislature seems terrified to exercise its own, one of those branches is destined to be more supreme in practice than the other.

 

To make matters worse, “LOBBY CONGRESS” doesn’t work in this case.

 

As with its ruling on presidential immunity (and today’s ruling on birthright citizenship), the court’s decision on Trump’s authority to fire “independent” bureaucrats was based on its understanding of the Constitution, not on a federal statute. His power can therefore only be limited by a constitutional amendment or by a future court overturning the ruling, neither of which will happen before 2028.

 

And liberals know it, and are adapting accordingly. “The only allowable constitutional path conservative legal theorists have given me to being protected from a vengeful president abusing his authority is to lobby Congress to pack the court,” Democratic data guru David Shor wrote yesterday of the decision on independent agencies. I despise court-packing but it is, assuredly, the most feasible route available to the left to overturn novel forms of presidential authority granted by the Roberts Court under the unitary executive theory.

 

That’s what I mean when I say that the court is caught in an endless dilemma: By remaining indifferent to how Trump might abuse its rulings (except with respect to the Federal Reserve!), SCOTUS is creating the political conditions for radical reform that will lead to a court full of partisan hacks who are dramatically more outcome-focused than the current justices are.

 

Optimists and pessimists.

 

There’s a tacit faith in the wisdom of Americans running through the Supreme Court’s approach to Trump that I find equal parts touching and idiotic.

 

The court isn’t indifferent in principle to presidential abuses, surely. What it believes, I suspect, is that those abuses should—and will—be punished in time by more appropriate constitutional authorities. Congress will eventually act. The people will eventually work their will. The judiciary doesn’t need to do it for them.

 

If the public dislikes seeing law-abiding Haitians deported en masse to suffer immiseration back home, they’ll take Sarah Isgur’s advice and lobby their representatives to do something. If the public dislikes seeing Trump set well-connected criminals loose on the streets or having him staff the federal bureaucracy with the crowd at a MAGA rally, it will rally behind restrictions to limit those powers.

 

The court seems to think that there’s no civic problem that can’t be addressed through conventional democratic mechanisms provided by the constitutional order, however onerous that might be in some cases. And so the court itself is under no special obligation to approach presidential authority differently in this very different era. Majoritarian elements of the republic can and will do that on their own schedule, as they have during periods of reform in the past.

 

This strikes me as a very optimistic view of an America poisoned by apocalyptic partisanship and increasingly seduced on both sides by postliberal attitudes toward power. We’re far more likely to see tit-for-tat abuses of executive authority by the parties post-Trump, I think, than we are to see a serious good-government reform movement dedicated to rolling back that authority gain traction.

 

Lobbying Congress to enact reforms will remain futile as House majorities stay narrow, frozen mostly in place by the reality of a 50-50 country in which ruthless partisan gerrymandering has gone mainstream. Even if one party gains the numbers to pass reforms, its members will convince themselves that they should exploit expansions in presidential authority under their predecessors rather than try to overturn them. They can put that power to good use! Plus, giving their enemies a taste of it will deter them from abusing it again when they’re back in charge—supposedly.

 

As the presidency grows even more domineering and influential, policy will begin to ping-pong more sharply between conflicting ideological visions whenever the White House changes hands. That starts with the bureaucracy: The winning party in each presidential election will now seek to remake the federal government as comprehensively as possible, purging independent agencies en masse under this week’s Supreme Court precedent and stocking them with less qualified, and likely less scrupulous, stooges.

 

Fear of ping-ponging is precisely why conservatives value the Senate filibuster, incidentally. The 60-vote threshold in the upper chamber prevents jolting turnabouts in federal law after a left-wing government replaces a right-wing one and vice versa. We’re going to get that sort of chaos now at the administrative level on “unitary executive” grounds, which will itself throw a jolt into policymaking.

 

Eventually the filibuster itself will go, and when it does I expect Democrats will follow Shor’s lead by concluding that conventional mechanisms aren’t up to the task of undoing Supreme Court decisions they dislike. An unconventional one, namely court-packing, will be needed. With America’s actual legislature reduced to a forum for cable-news-friendly grandstanding, the packed court will become a de facto super-legislature where matters like whether Haitians keep or lose their temporary protected status effectively get decided.

 

Congress shall make no law. That’ll be SCOTUS’s job.

 

The majoritarian elements of the constitutional order aren’t going to solve the Trump problem, I’m afraid. But I also don’t blame the Supreme Court for washing their hands of it and trusting Americans to clean up the mess they’ve made.

 

The rise of Trumpism stranded principled conservative jurists caught between two outcome-focused approaches to law, the “living constitutionalism” of the left and the “ends justifies the means” nihilism of the postliberal right. It’s understandable that besieged justices like John Roberts and Amy Coney Barrett might redouble their faith in liberal process under those circumstances: As long as the people retain their ability to change things about the system they don’t like, the court has no reason to do it for them. They’ll do it themselves when they’re good and ready.

 

We’re not going to like where that leads, but that’s a problem with Americans, not with Roberts and Barrett. All of our country’s problems ultimately are.