After Democrats’ blowout win in the midterms, Congress will have a lot of formal power to check the administration, particularly through appropriations and oversight. The effectiveness of those checks, however, may depend importantly on something less tangible: Congress’s functional power to shape public opinion and delegitimate actions it considers unlawful or ill-advised. And that power, unfortunately, seems to have undergone a long-term decline.

At any rate, I speculate about this possibility in a forthcoming essay in the Notre Dame Law Review. (The essay is part of an excellent Gray Center symposium on “What Happened to Congress?”.)

My essay posits that a key feature of separation of powers in the United States has been a process of interbranch legitimation of government action. These days, people often imagine that effective government requires letting majorities get things done. That is true enough but if taken too far it misses that checks and balances may empower government even as they also restrain it. They do so in part by helping ensure the popularity of actions that run the gauntlet of interbranch checks. But checks and balances may also help generate that popularity in the first place by enhancing the legitimacy of actions that the branches jointly approve.

If that idea sounds fanciful, consider the historical role of the Supreme Court. Political scientists have long puzzled over why the political branches tolerate judicial review, given its potential to obstruct their goals. The answer, according to Keith Whittington and others, is that judicial review actually serves the political branches’ long-run interests. In some instances, the Court saves politicians from themselves by taking divisive options off the table. But more generally the Court has helped legitimate contested policies by validating them.

In other words, by blocking some actions, courts gain the credibility to settle legal and constitutional doubts about others. Politicians take the bitter with the sweet. Gaining validation from judicial approval requires accepting judicial defeats—a dynamic very much in evidence in the second Trump administration (and for that matter in the Biden administration, too).

My essay speculates that similar dynamics might be generalized across the three branches. In particular, Congress these days often finds itself in a position analogous to courts exercising judicial review.

Due to broad statutory delegations and accumulated executive practice, presidents can often pursue significant initiatives unilaterally. Congress is then in a reactive posture: it must decide whether to support or stymie executive initiatives. And while that process is partly a matter of exercising its formal power over continued funding, it is also, perhaps more fundamentally, a matter of functionally shaping public perceptions of such actions.

In any event, there is substantial evidence that Congress has historically played the leading role in sustaining broad public acceptance of federal governance. With its distributed representation and capacity for logrolling and compromise, Congress is best positioned among the branches to channel public opinion and promote acceptance of disputed policies. And on matters ranging from war mobilization and industrial policy to welfare and civil rights, Congress has done just that. It has been the central engine of legitimacy for federal governance.

Lately, however, this engine has seemed to splutter. Mired in partisan division, Congress has struggled to legislate on key questions like immigration and the environment; it has instead let the executive branch set policy on its own. Even worse, Congress has largely failed to defend its institutional prerogatives against repeated presidential usurpations. In the second Trump administration, executive officials have defied limits and mandates regarding spending and other matters in ways that even quite popular presidents in the past did not dare.

Now, with the return of divided government, congressional capacity faces an important test. It is possible that Congress will recover some of its ability to negotiate broadly supported compromises and enforce its institutional interests in bipartisan fashion; having larger and more ideologically mixed Democratic majorities in the House and Senate may help.

But Congress is likely to remain highly polarized and President Trump will surely seek to write off congressional checks as partisan posturing; he is reportedly planning to use executive power aggressively. A key question will then be whether congressional opposition stiffens resistance inside the executive branch to unlawful or unwise actions. Can Congress still strip force from actions of which it disapproves, or can presidents ride roughshod over congressional opposition unless and until courts step in to stop them?

Though Congress will hopefully succeed in restoring some of its former strength, I fear that, whatever happens over the next two years, Congress’s decline reflects deep-seated changes in media and society rather than more contingent factors. As Rick Pildes has pointed out, other western democracies with very different systems are facing similar governance challenges and problems of legislative incapacity. Just look at France.

While I don’t have great answers to this problem, the essay suggests two institutional adaptations. First, courts (and Congress itself) should buttress Congress’s ability to support or stymie executive initiatives through the “reactive” powers I mentioned earlier—Congress’s powers of oversight and funding. And second, courts themselves should take care to avoid the sort of excessive politicization that could undermine their own authority, much as fragmentation has done for Congress.

More generally, all sides of current debates should remember that American government has historically been effective because of checks and balances and not despite them. To that extent, removing restraints on majority will could prove self-defeating.