The Midterm Election Has Changed Politics, But Not the Constitution

American voters delivered a remarkable verdict on Tuesday. Democrats won control of both houses of Congress, defeating Republicans in states that had been reliably conservative for decades. The magnitude of the defeat raises serious questions about the future of the Republican Party and its relationship with Donald Trump. But the election also raises a more immediate concern. What can a newly elected Congress actually do to constrain a president whose policies voters have so decisively rejected?

The answer is less straightforward than the lopsided election results might suggest. President Trump remains in office until January 2029. Congress can investigate his administration, block appointments, refuse additional spending authority, and pass legislation. But when the president acts under authority already granted by law, Congress cannot simply veto his decisions. To reverse them through legislation, it ordinarily needs the president’s signature or enough votes to override his veto.

The explanation lies in a constitutional controversy with roots in another extraordinary American election, the landslide defeat of Herbert Hoover and the Republican Party in 1932.

Hoover had long sought authority to reorganize the federal government. He thought that consolidating agencies and eliminating overlapping responsibilities would improve efficiency and reduce costs. Congress, however, had established many of these agencies by statute and was reluctant to surrender control over their organization.

Hoover proposed a compromise. Congress would authorize the president to reorganize parts of the executive branch, but it would retain the right to reject his plans. Under the Economy Act of June 30, 1932, either house of Congress could disapprove a reorganization order by passing a resolution, without the consent of the other chamber or the president.

This arrangement became known as the legislative veto. It allowed Congress to delegate authority while reserving the power to reverse specific executive decisions made under that same authority. Hoover obtained greater managerial flexibility, and Congress retained a means of controlling its exercise.

The arrangement was adopted under divided government. Hoover was a Republican president, but Democrats controlled the House of Representatives. Republicans retained control of the Senate. Political disagreement between the executive and legislature was anticipated in the arrangement.

Then came the election.

In November 1932, Franklin Delano Roosevelt defeated Hoover by 472 electoral votes to 59, winning more than 57 percent of the popular vote. The Democrats also made enormous gains in Congress. Roosevelt’s victory marked the beginning of a transformation that would reshape American politics for decades.

The political scientist James Sundquist described this transformation as a party realignment. The great depression had brought new constituencies into the Democratic coalition and changed the central issues around which the parties competed for votes. The Republican Party had to reconsider its own policy agenda and political approach and its relationship with the electorate.

The election also transformed Hoover’s plans for reorganizing the government. After his defeat, he submitted eleven reorganization orders under the authority that Congress had granted him. And in January 1933, the Democratic-controlled House of Representatives used its legislative veto to reject all eleven.

What once had made reorganization possible now made it impossible.

As Roosevelt’s inauguration approached, Congress granted the president broader reorganization authority without the one-house veto it had just exercised. Both the economic depression and  the changed political circumstances changed the terms of the earlier bargain. Congress was now willing to grant Roosevelt the very authority that it would not allow Hoover to exercise.

This episode illustrates a persistent feature of American government. The president and Congress have different constitutional responsibilities, but their willingness to cooperate depends on political realities. 

For half a century, the legislative veto gave Congress a way to manage this problem. It became common in federal statutes, allowing Congress to reject particular executive or administrative decisions without enacting another law. But its constitutionality remained in dispute.

In 1983, the Supreme Court resolved the controversy in Immigration and Naturalization Service v. Chadha.

Jagdish Rai Chadha was born in Kenya, held a British passport, and entered the United States legally in 1966 on a student visa. His visa expired in June 1972, but he stayed put. Immigration authorities launched deportation proceedings the following year.

Chadha applied for relief under a provision of immigration law that allowed the Attorney General to suspend deportation in some circumstances. In 1974, an immigration judge granted his application, finding that he had lived continuously in the United States for more than seven years, was of good moral character, and would suffer extreme hardship if he were deported.

But the law contained a legislative veto. In December 1975, the House of Representatives passed a resolution rejecting the suspension of Chadha’s deportation. There was no debate or recorded vote.

Once again, the legislative veto had been exercised during divided government. President Ford was a Republican and Democrats controlled both houses of Congress. The House veto did not necessarily reflect a partisan dispute over Chadha’s particular circumstances, but it was a direct intervention to quash an executive decision.

Chadha argued that the legislative veto violated the constitution, and the Supreme Court agreed.

The Constitution requires legislation to pass both houses of Congress and then to be presented to the president, who may sign or veto it. Congress could not circumvent those requirements.

As Chief Justice Warren Burger put it, “Convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.”

Justice Byron White dissented, describing the legislative veto as “an important, if not indispensable, political invention.” White argued that it allowed Congress to give authority to the  executive branch without surrendering meaningful oversight. Without the legislative veto, Congress faced a difficult choice between withholding authority it felt was necessary and delegating it without an effective check.

Both justices recognized the practical difficulties of governing through separated institutions, but they disagreed about whether those difficulties could justify changing a constitutional procedure. Moreover, the current Supreme Court invoked Chadha in its decision this past June in Trump v. Slaughter, emphasizing that longstanding political arrangements cannot overcome constitutional restrictions on power.

The implications of this are particularly intriguing after Tuesday’s election.

The newly elected Democratic Congress will have substantial power to check the actions of the Trump administration. But it cannot veto them. To withdraw authority previously delegated to the president, Congress generally must enact a new law. And President Trump can veto it.

This does not mean that the president stands above the law, nor does it mean he can stop Congress from exercising its constitutional powers. The Constitution just makes it hard for either branch to do things without cooperation and compromise. Recognizing that reality in an interview with the New York Times after the election, President Trump summarized that point: “We'll ⁠work with the Democrats, and we’ll, you know, ​look ​forward ⁠to working with them. We’ll ​probably work ​something ⁠out.”

There remains a fundamental tension between political change and constitutional stability.

Voters have expressed a desire for a different direction in national policy, but the Constitution does not allow a congressional majority to translate that preference into law without the president.

This is no defect. It is a consequence of designing a system to prevent political authority from becoming too concentrated. Political realities may make it seem to be a structural problem, until the voters change those conditions.

Justice Robert Jackson captured this principle in a 1952 opinion. The Constitution mandates “separateness but interdependence, autonomy but reciprocity.”

American government depends on institutions that cannot govern alone. Elections change the political incentives of those who occupy these institutions, but they do not lift the constraints that these institutions impose on one another.

Still, the Republican defeat of 2026 invites comparison with the party’s defeat in 1932. The historical circumstances are different, not least because Roosevelt replaced Hoover in the White House. 

Elections of this magnitude can make political parties reconsider their commitments and what coalitions of voters they aim to represent. The Republican Party now faces questions about the political program that brought it to power, its relationship with Trump, and its prospects beyond his presidency. How it responds will shape the next era of American politics.

The story of the legislative veto illustrates two crucial consequences of American elections. They can transform the political parties through which citizens express their aims and wants. But they can redistribute authority across institutions without changing the rules of the game.

The first consequence makes policy change possible. The second ensures that constitutional change doesn’t follow on its heels.

After Tuesday’s extraordinary election, we should looking closely at both.