Socialists Need to Develop a Constitutional Politics
To win change for working people, the Democratic Socialists of America should expand its vision of how to change our constitutional order. We can smash unaccountable executive and judiciary power even without having to amend the Constitution.
If socialists are to maximize our political power, we must arrogate authority to Congress — the only branch where we can expect consistent political representation in the short and medium terms. (Sarah Rice / Getty Images)
Last month, the Democratic Socialists of America (DSA) announced its 2026 “Workers Deserve More” program. The updated program concretizes DSA’s vision for a worker-centered American economy, democracy, and foreign policy. It calls for, among other things, housing for all, a Green New Deal, and public ownership of the largest corporations and essential industries. Besides these reassertions of earlier priorities, buried in the program (but receiving outsize attention from far right and establishment media alike) is a novel proposal from DSA: replacing the presidency and the Supreme Court with an executive and judiciary “chosen by and subordinate to Congress.” This is a marked shift from DSA’s 2025 program, which called for the election of the president by national popular vote and a mere “reduc[tion]” in the power of the Supreme Court.
DSA’s new commitment to a legislature-centered federal government comes as part of a larger left reckoning with the dangers of an overly strong presidency and judiciary. It is clear that we must push to increase Congress’s power at the expense of the president and the courts in order to enact and entrench a transformative policy program. But DSA’s commitment to changing the constitutional structure of the federal government — something achievable only through the minoritarian process of amendment — must be supplemented by what legal scholar Beau Baumann has called a “constitutional politics” of “legislative primacy,” which presents a theory of how to disempower the president and the courts without changing a word of the American Constitution.
The Left now finds itself in the position of wielding more federal power than it has in generations; it cannot squander this chance to pass its transformative agenda and protect it from encroachment by a hostile president or skeptical courts.
DSA is correct in identifying the legislative branch as its best institutional bet for advancing its transformative policy agenda. Short of constitutional amendment, acts of Congress are the most durable vehicle for policy. Executive actions without clear legislative authority can fall victim to adverse rulings from hostile courts, as Joe Biden found in attempting to cancel student loan debt. Those that are not struck down by court ruling can be easily rescinded by a subsequent reactionary president, as Donald Trump did with Barack Obama’s executive actions on climate policy.
While Congress may itself reverse course — indeed, the 119th Congress’s One Big Beautiful Bill Act rescinded many of the green energy subsidies authorized in the Inflation Reduction Act — its members exist in a different political reality from presidents. They can be reelected indefinitely, whereas presidents know that after a successful reelection they themselves need never answer to voters again. They have no subordinate officials to blame any political missteps on, needing to carry the weight of any questionable votes themselves. And in the House of Representatives at least, they must answer to the electorate more frequently, allowing constituents the chance to eject their representatives soon after they step out of line.
Baumann presents historical evidence that further supports the case for legislative primacy. He points out that major periods of transformative policy implementation — Reconstruction, the Progressive Era, and the New Deal — passed their programs into law through Congress and gave clear legal authority to their agendas while disempowering those hostile to them. Even during the period most defined by its charismatic and powerful executive, the New Deal, Congress played a central role in legitimating the president’s policy program by passing it into law and cowing the judiciary with a credible threat of packing the Supreme Court.
A fourth major era of transformative policy, the Civil Rights Era, is the exception that proves Baumann’s rule. As Baumann put it, “The civil rights movement played every slot machine: presidential, administrative, legislative, and judicial. In the process, the rights revolutionaries created a juristocracy that would, in due time, undo all of their work.” The same institution that gave Americans the right to abortion and upheld the Voting Rights Act has now, after conservative capture, withdrawn that guarantee and shredded the law it once approved.
Legislative Primacy and the Left
Legislative primacy also has advantages for DSA’s particular program, coalition, and ideology. In addition to its general advantage of entrenching policy, legislative primacy can help advance some of DSA’s substantive priorities.
Take DSA’s goal of ending the US war machine: if the Left wants to limit American military interventionism, it must assert that a majority vote in each house of Congress is first necessary to declare war. Because of the Electoral College and the Senate confirmation process for judicial nominees, these institutions tilt toward rural, depopulated areas beyond DSA’s current predominantly urban coalition. If socialists are to maximize our political power, we must arrogate authority to Congress — the only branch where we can expect consistent political representation in the short and medium terms. Finally, DSA’s political ideology prioritizes democratic governance. Congress is the only branch where the people’s democratically elected representatives come together, deliberate, and make policy for their constituents. Beyond its political advantages, legislative primacy would be in keeping with DSA’s democratic spirit.
Despite its strengths, legislative primacy also has its weaknesses. As Michaeljit Sandhu, a skeptic of legislative primacy, has pointed out, a focus on which branch should wield which powers runs the risk of distracting a progressive movement from passing substantive and transformative policies. Additionally, as both Baumann and Sandhu recognize, Congress is not a flawless branch. Congress has become sclerotic, unable to pass major legislation beyond an annual budget and one or two signature bills for each president. The Senate itself, meanwhile, acknowledges that it is structurally designed to stymie popular policies. And because of America’s broken campaign finance system, special interests like the American Israel Public Affairs Committee can flood elections with corporate money and force progressives into an uphill battle. Thankfully DSA is aware of this, and its 2026 program calls for addressing most of these deficiencies, while its substantive and popular policy agenda demonstrates that it will not lose the forest of good policy for the trees of how to enact it.
A Game Plan
How, then, should DSA restore legislative primacy? Its key reforms of abolishing the Senate and establishing congressional selection of the executive and judiciary are blatantly incompatible with the text of the Constitution as it currently stands, making constitutional amendment the only clear way of enacting them. Amending the Constitution would allow the Left to comprehensively change the structure of the federal government and the distribution of powers therein. It would also allow such changes to be more or less permanently entrenched, as only one previous amendment has been repealed (the Eighteenth Amendment, enshrining prohibition into the Constitution, was repealed by the Twenty-First Amendment).
Realizing legislative primacy through constitutional amendment is, however, a near-impossible goal for the left coalition as it stands. Successful ratification of an amendment to the US Constitution requires a two-thirds majority in both the House and the Senate and the assent of three-quarters of states — presently thirty-four of fifty. In the next Congress, socialists will not hold a governing majority in either house, never mind a two-thirds majority in both and control over thirty-four state legislatures. Counting its primary wins in deep blue districts, DSA will boast only six House members when the 120th Congress convenes in January. Even counting all of the members of the Congressional Progressive Caucus (CPC) — who are by no means uniformly aligned with DSA’s program — that still only comes to around a hundred members in the House, fewer than half of the 218 votes required for a majority (the Senate has only one CPC member, Bernie Sanders). Unless and until DSA is able to build a rural-urban coalition from the ground up, amendment will be out of the question.
Fortunately, we can restructure our constitutional order without changing any of the Constitution’s text. Conservatives have done so successfully over the last half-century, organizing a concerted movement to grant more and more power to the executive branch. We must now use the same means to achieve our own ends.
An organized game plan could look like this: First, Congress must, with the help of a sympathetic executive, pass legislation to pack the Supreme Court and appoint jurists with unimpeachable commitments to a broad construction of congressional authority. Second, Congress must enact a transformative policy agenda with jurisdiction-stripping language that demonstrates its willingness to use governing authority to improve our general welfare. Third, Congress must simply wait for the executive, states, or private industry to challenge some aspect of its program in the name of their own interests and for the Supreme Court to establish new precedent affirming Congress’s authority. This strategy also faces a high bar for implementation, requiring a sympathetic president and buy-in from fifty senators and 218 representatives. This is significantly easier than winning the support necessary for an amendment, however, and is thus the Left’s best shot at rebalancing the distribution of federal power.
There is much room within this broad framework for the Left to devise, debate, and test new ways to reinvigorate congressional authority. For one, it should decide whether it wants to reinvigorate the administrative state and insulate it from presidential control, as Baumann suggests, or whether it wishes to live with the Supreme Court’s decision in Trump v. Slaughter and to follow Samuel Moyn’s suggestion of incorporating much of the federal government’s rulemaking authority into its own legislative process. There are also symbolic measures that the Left can take to, as Baumann put it, “abolish presidentialism” — and support for juristocracy — “in the hearts and minds of the American people.”
Congress could require the Supreme Court to hear its cases in the Old Supreme Court Chamber in the Capitol basement, perhaps allowing them to use their current courthouse only in separation-of-powers disputes. Congress could also receive the State of the Union address in written form rather than by personal delivery, as was the case for presidents from Thomas Jefferson to Woodrow Wilson. The Left should explore these avenues and work with legal experts and historians to test new and old means of restricting presidential and judicial power.
The glaring flaw in the plan presented here is finding an executive that will set this program of judicial and presidential disempowerment in motion. To appoint friendly jurists and approve its legislation short of a veto override, Congress first needs a cooperative executive. This heightens the importance of DSA’s ongoing presidential endorsement process.
If DSA is serious about ensuring that socialist policies are insulated from presidential abuse and judicial review, it should extract commitments from its nominee to go along with an agenda that reasserts legislative primacy. A socialist president must recognize that his or her power is fleeting, and that to entrench a socialist political program, he or she must cede power to Congress.
Even if they win both the House and the Senate, Democrats will not have a president of their party until 2029 at the earliest, and even in a divided government, socialists will not have an outright majority in the House. What socialist and hard-line progressive House members can do now, however, is organize into a critical bloc ahead of the House Democratic Caucus elections.
These elections, held just before the opening of Congress in early January, will decide Democratic committee leaders, policy and campaign chiefs, and potentially even the speaker. They should prioritize electing their own into positions of leadership and extract from those nonsocialist members they might support concessions to pass messaging bills on socialists’ substantive and procedural priorities. Acting strategically, DSA members can ensure that while they are out of power, they can lay the groundwork to pass and entrench their political program once they are in it.
Rewriting the Constitution to assert Congress’s primacy, as DSA and left commentators call for, is a glaring necessity. But America cannot afford to wait for thirty-four states to come to the same conclusion. To win change for working people, DSA must expand its vision of how to change our constitutional order; in other words, it must develop its own constitutional politics. The form of this constitutional politics should follow from the historical lesson that our country’s most durable programs of transformative change have flowed through Congress, not through the executive or judiciary. Make no mistake: DSA should not prioritize empowering Congress if it means setting aside its substantive policy agenda, but it should recognize that Congress, despite its many flaws, is our best vehicle to enact this agenda.