The Abdication
Congress has been voluntarily surrendering its constitutional authority for decades. Roe v. Wade is the most consequential example of what that costs.
Written May 2026 in response to Democrats introducing a bill to impose 18-year term limits on Supreme Court justices, and the broader question of why the Court has accumulated so much cultural and political power in the first place.
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The United States Congress is the most powerful legislative body in the world on paper. Article I of the Constitution grants it the power to declare war, control the federal budget, regulate commerce, confirm judges, and legislate on virtually every question of national importance. It is the branch most directly accountable to voters, most frequently renewed through elections, and most structurally capable of reflecting the actual preferences of the American public across its 535 members.
It has spent the better part of a century giving that power away.
The War Powers Resolution of 1973 was supposed to reclaim congressional authority over military force after Vietnam. Every president since Ford has functionally ignored it and Congress has never enforced it, meaning the United States has conducted military operations in countries and against groups with no connection to any congressional authorization for decades. Trade authority was systematically delegated to the executive through fast track legislation that stripped Congress of its Article I power to set tariffs, which is why the current administration’s tariff actions are constitutionally contested in the first place. The administrative state has expanded into a fourth branch of government that writes binding regulations with the force of law, and Congress has repeatedly chosen not to exercise its power under the Congressional Review Act to claw those regulations back. The budget process has been replaced by continuing resolutions and omnibus packages that allow members to avoid recorded votes on specific spending decisions while the national debt grows by two trillion dollars annually.
The pattern is consistent and bipartisan. Congress repeatedly encounters a hard problem, decides the political cost of resolving it is too high, and finds a mechanism to hand the decision to someone else. The executive branch, the regulatory agencies, and most consequentially the Supreme Court have all expanded their authority not primarily through power grabs but through vacuums that Congress created and declined to fill.
No example illustrates this more clearly or more consequentially than Roe v. Wade.
I want to be honest about my position before making the argument, because the argument requires separating two questions that the political debate almost never separates. I believe women have the right to make their own reproductive decisions. I also believe the Supreme Court was the wrong institution to be the permanent guardian of that right for fifty years, and that Congress’s failure to codify abortion protections into federal law during the five decades it had every opportunity to do so is one of the most significant governance failures in modern American history, and one that the political class on both sides bears direct responsibility for.
Roe was decided in 1973. Democrats controlled the House of Representatives continuously for the next twenty one years and the Senate for most of that period. They had unified government under Carter from 1977 to 1981, under Clinton briefly in 1993 and 1994, and under Obama with a filibuster proof Senate majority for a period in 2009 and 2010. The legislative codification of abortion rights was available in every one of those windows. The Affordable Care Act passed during that filibuster proof window in 2010. The legislative bandwidth existed. What did not exist was the political will to remove abortion as a mobilization issue, because a solved problem does not generate donations and turnout the way an existential threat does.
The Republican side of this equation is equally cynical in the opposite direction. Republican candidates and senators promised to overturn Roe for fifty years as a mobilization tool for their base, collected those votes reliably, and many privately had no interest in the governing chaos a post-Roe world would produce because a world where abortion is regulated by fifty different state legislatures is significantly messier and more politically costly than a world where the Court handles it and Congress can criticize from the sidelines.
Both parties spent fifty years treating the most contested social question in American life as a perpetual fundraising vehicle rather than a problem requiring legislative resolution. The people paying the price for that calculation were the women in states with the most restrictive laws and the providers facing criminal prosecution after Dobbs, and neither party has faced meaningful accountability for the fifty year abdication that created the situation.
The Supreme Court term limits bill that Democrats introduced this week is the latest version of the same pattern. The party that controlled the Senate for years and declined to codify abortion rights is now proposing to restructure the institution that resolved the question they refused to touch, using the same moral urgency language they deployed for fifty years while doing nothing. The party introducing that bill knows it will not pass. It is not designed to pass. It is designed to generate the same fundraising emails and base mobilization that Roe generated for a generation, now pointed at the Court rather than at the underlying policy question.
The honest argument about Supreme Court term limits is worth having on its own merits, separate from the current political packaging. There are legitimate reasons to think that lifetime appointments create incentive problems and that an 18-year term with staggered appointments would produce a more predictable and less politically charged confirmation process. But that argument requires acknowledging that the Court accumulated so much cultural and political power in the first place because Congress abdicated the field, and that restructuring the Court without rebuilding Congress’s willingness to do its actual job would simply shift the power vacuum to a different institution rather than filling it.
The question worth asking is not how to limit the Supreme Court’s power. It is why we built a governing system where the death of a single elderly lawyer in Washington can throw the entire country into existential political crisis, and whether the people responsible for building that system bear any accountability for the consequences. The answer to both questions points directly at the institution introducing the term limits bill, and at the one currently sitting at 10 percent approval while 90 percent of its members keep their seats.