How have American institutions (courts, civil service, Congress) responded to alleged attempts at executive overreach since 2016?
Executive summary
Since 2016 American institutions have responded to alleged executive overreach unevenly: the courts and civic litigants have often acted as the most consistent check through litigation and briefs, the professional civil service has faced erosion and politicization that blunt its independence, and Congress has shown recurrent weakness—sometimes conducting oversight, but more often retreating because of partisan incentives, resource shortfalls, and fears of reprisal [1] [2] [3]. These reactions reflect both durable constitutional tools and deep institutional limits rooted in politics and capacity [4] [5].
1. Courts as the frontline responder: litigation, amici and selective enforcement
Federal courts, aided by public-interest litigants and amici, have frequently been the venue where alleged executive overreach is contested, with civic groups coordinating friend‑of‑the‑court briefs and strategic lawsuits to test claims about the use of force, funding, and administrative action—work the Brennan Center and others explicitly describe as central to pushing back on presidential overreach [1]. Civic organizations and bipartisan actors have also filed amicus briefs in critical cases testing executive power, a pattern noted by Issue One’s participation in high‑profile litigation and briefs [6], and courts historically have at times restrained executives, underscoring that litigation remains the most reliable institutional check even as outcomes vary [5].
2. The civil service: erosion, politicization and its consequences
Observers and scholars document a sustained attack on the independence of the civil service and its norms, arguing the last decade has seen “serious efforts to erode” career public‑sector autonomy and expand discretionary executive authority, a dynamic that both increases the risk of abuse and weakens internal institutional pushback [2]. Reporting and watchdogs warn that retaliatory investigations, security clearance removals, and political targeting within agencies amount to a weaponization of government that chills dissent and reduces the civil service’s ability to function as an internal check [7], a concern echoed in analyses that link politicization to declining institutional resistance.
3. Congress: sporadic oversight, structural weakness, and partisan abdication
Congressional responses have ranged from hearings and task forces to chronic underperformance; formal mechanisms exist—such as the 2016 Executive Overreach Task Force hearings and historical oversight tools—but scholars and watchdogs argue Congress often fails to marshal them, hamstrung by resource limits, internal rules, and partisan incentives that produce abdication rather than confrontation [8] [9] [4]. Multiple analyses and reports assert that members’ fears of reprisal and party‑cohesion dynamics leave oversight uneven, with Republican majorities at times refusing to check an executive of their party and both parties sometimes ceding powers like the purse to the White House [3] [10] [11].
4. Mixed institutional outcomes and historical context
The record is not uniformly bleak: historical precedents show Congress and courts have constrained overreach before—e.g., refusal to go along with court‑packing or executive impoundment spurred statutory fixes—and contemporary institutions have occasionally rebuffed unilateral actions [5]. At the same time, the Brookings analysis situates recent patterns in a broader trend of executive aggrandizement that predates any single administration, meaning institutional responses reflect both current political dynamics and long‑running shifts in governance [2].
5. Why institutions respond as they do: incentives, capacity and politics
Explanations converge on a handful of dynamics: partisan incentives that reward deference to allied executives, institutional resource and staffing shortfalls that limit effective oversight, and fear of retaliation that discourages robust inquiry—factors documented by scholars and watchdogs as making Congress “more susceptible” and less able to assert prerogatives without judicial help [4] [3]. Those same dynamics make the courts and outside litigants more willing and sometimes more able to act, while the civil service’s weakening reduces in‑house checks, producing a reactive ecosystem of judicial and civic remedies instead of proactive legislative governance [1] [2].
6. Consequences and contested narratives
The result is a fractured system of checks: courts and advocates plug gaps through litigation and public pressure, the civil service struggles to maintain independence amid politicization, and Congress oscillates between oversight and abdication—arguments from watchdogs and partisan reports reflect differing diagnoses and agendas, with some emphasizing institutional design fixes while others spotlight partisan malfeasance and threats to rule of law [1] [12] [4]. Sources differ on the weight of each factor, and reporting sometimes carries implicit agendas—advocacy groups press litigation, scholars call for capacity building, and political actors may downplay failures when it suits them—so understanding institutional response requires reading both the formal acts and the political incentives behind them [6] [10].