Last week, a reporter asked President Donald Trump who he thought the College of Cardinals should elect as the next pope when they gather later this week in conclave. It was a ridiculous question—presidents should not comment on such things in general, and I doubt Trump could name a single cardinal anyway. He dismissed it with what I took to be an obvious joke: that the cardinals should elect him instead.
South Carolina Senator Lindsey Graham then took the joke too far. “I was excited to hear that President Trump is open to the idea of being the next Pope,” he wrote on Twitter last week. “This would truly be a dark horse candidate, but I would ask the papal conclave and Catholic faithful to keep an open mind about this possibility! The first Pope-U.S. President combination has many upsides. Watching for white smoke.… Trump MMXXVIII!”
The post stands out to me not for the sectarian insult it represents to millions of American Catholics, or because of the oblique reference it makes to an unconstitutional third term in 2028, but for the sheer embarrassment of it all. Graham’s toadying may be more outward than most of his colleagues’. Still, it symbolizes how Republicans in Congress have reduced themselves to a body of servile functionaries, acting less like duly elected members of a coequal branch of government and more like fawning courtiers at Louis XIV’s Versailles.
The fundamental story of Trump’s second term has been his usurpation of powers traditionally granted to the legislative branch. Congress created the networks of federal agencies and programs that help govern the country; Trump has asserted the power to shut them down at will. Congress has the constitutional power to set tariffs and other taxes; Trump has unilaterally imposed them on most of the world in ways that are not only economically ruinous but likely illegal as well.
Congress entered the Trump era in an already weakened condition. I’ve written before on how the legislative branch has devolved into a largely theatrical enterprise. Rank-and-file lawmakers have little impact on legislation. Party leaders wield near-absolute powers over the flow and wording of bills. The constant churn of fundraising and messaging have all conspired to sap its vitality and energy.
Over the last three months, we’ve seen something even more ominous: Republican senators and representatives acting as willing partners in the destruction of their own branch of government’s power, all on Trump’s behalf. The Constitution is designed for tension between the three branches of government; it cannot function if one branch proclaims its supremacy and the other two give up without a fight.
Most of Congress’s complicity is through sheer inaction. House and Senate Republicans largely agree with Trump’s war on the federal government and welcome his campaign against the so-called “administrative state.” To that end, they have taken no real steps to stop Trump from laying off civil servants en masse, shuttering entire agencies, and refusing to spend congressionally authorized funds. Many have cheered on DOGE, even as it effectively supplants them in the American constitutional order.
This complicity also comes through the lack of oversight. Since it wields the power of the purse, Congress has the right to demand information from the executive branch on how federal funds are spent. There are no signs that House or Senate Republicans are interested in exercising that power against the Trump administration, even on highly unpopular issues like DOGE. Elon Musk, the group’s troubled head, skipped a House Ways and Means Committee meeting in March where he was asked to testify.
The gap is especially stark because of the GOP’s unrelenting aggressiveness against the previous administration. The Washington Post’s Phillip Bump noted last week that Republicans on the House Oversight Committee spent two years claiming that President Joe Biden was the corrupt beneficiary of foreign deals struck by his troubled son Hunter. Georgia Representative James Comer, the committee’s chairman, alleged that the elder Biden had “swindled” investors overseas and become “compromised by foreign governments.”
Comer and his allies found no evidence to support those claims, and their much-ballyhooed push to impeach Biden for his alleged profiteering went nowhere. If Republicans are interested in presidents potentially abusing their office for private gain, however, Trump has given them multiple avenues of inquiry. They could look into Trump’s official meme coin and who profited from its precipitous rise and fall, or whether the slapdash tariffs last month led to insider trading within the White House, or the recently announced $2 billion Emirati cryptocurrency deal with the Trump family—to say nothing of sundry other opportunities for graft and corruption.
In recent days, Republicans have also taken some affirmative steps to help Trump fight the other two branches. The House Judiciary Committee voted last week to approve a measure that would make it easier for the Trump administration to defy court orders. “No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section,” the section read.
Rule 65(c) itself is not new. It requires federal courts to order litigants to post a bond of sorts when seeking injunctions and temporary restraining orders against the opposing side. The bond’s purpose is to cover costs and damages if the opposing side is later found to have been wrongly enjoined or restrained by the court. Notably, this rule does not apply to the government itself: The Justice Department doesn’t have to pay up when asking the courts to enjoin someone else.
As a result, federal judges typically set it to $0 when the federal government is a party to litigation. This avoids the basic inequity of requiring the federal government’s opponents to pay up to obtain relief while not holding the government to the same standard. That exercise of discretion avoids troubling scenarios where a litigant has to effectively pay the court to safeguard their own constitutional rights, which could create perverse incentives for the government.
Rule 65(c) first drew the Trump administration’s attention in March as it sought to staunch the bleeding from dozens of legal setbacks, especially against DOGE. The president issued an executive order to direct the federal government’s lawyers to more aggressively seek Rule 65(c) securities when they defend the administration’s policies and actions in court.
“This anti-democratic takeover is orchestrated by forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail,” the White House complained, without a hint of irony. “Taxpayers are forced not only to cover the costs of their antics when funding and hiring decisions are enjoined, but must needlessly wait for government policies they voted for.”
The House proposal is disturbing in a few ways. For one thing, it effectively punishes Americans for seeking legal redress from the government. The Trump administration framed it as a means of kneecapping liberal public-interest law organizations: Its stated goal, the White House said, was to deter “activist organizations fueled by hundreds of millions of dollars in donations” from “functionally inserting themselves into the executive policymaking process and therefore undermining the democratic process.”
Second, the provision would apply retroactively and to ongoing litigation, not simply to future cases. This is not unconstitutional by itself: The ex post facto clause, which generally bars Congress from passing laws with retroactive effect, only applies to criminal cases and not civil ones. At the same time, it serves only to disrupt and defund litigation that has already succeeded against the government, effectively rewarding acts that have been found to likely be illegal and unconstitutional.
Third, and perhaps most importantly, the provision would give tacit approval to contempt of court. Divided Argument’s Samuel Bray noted last week that the legislative language isn’t very well crafted: A judge could get around it by setting a bond of $1 instead of $0. At the same time, the provision contemplates a scenario where someone could violate court orders and the courts, hamstrung by Congress, would be powerless to stop it. That is a significant threat to both the rule of law and to judicial independence.
The Supreme Court, to its partial credit, took steps to preserve its own authority in recent weeks. (I only give them partial credit because they created this monster in the first place.) Their order last month to immediately halt Alien Enemies Act deportations came from an unmistakable concern that the Trump administration was trying to evade judicial review.
The same thing can’t be said for Congress. Republican lawmakers may think that they are following their constituents’ wishes by reflexively obeying Trump’s whims. Allowing a president to usurp the powers of one branch and ignore the orders of another one is not in anyone’s long-term interest—and especially not theirs. Graham and his colleagues can’t make Trump a pope, but they are making him into a king.
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