Divided Government Again, What the Constitution Gives a President Facing It

Let me read you a sentence from the Constitution, Article I, Section 7, and then ask you to notice that the men who wrote it were not worried about a president whose party had lost Congress. They were planning for him.

The sentence is the veto clause, and the whole machinery around it assumes a president and a Congress that do not always agree. The Constitution was not designed for a world of harmony. It was built, on purpose, for exactly the situation the country now faces. In the midterms of November 3, 2026, Democrats won control of both the House and the Senate, as CBS News and other outlets reported in the days after. The 120th Congress begins on January 3, 2027, and President Trump will govern for the remaining two years of his term with a Congress controlled by the other party. I will not predict what happens next, give seat counts or tell you who will win any fight. My subject is the text: what the Constitution hands a president in this position, and what it takes away.

The claim, in four parts

1. Divided government is not a malfunction. It is one of the conditions the Constitution was built to handle, and it has been a feature of American life for much of the modern era.
2. A president facing a hostile Congress keeps real powers: the veto, the recommendation of measures, the nomination of officers, the command of the executive branch and the bully pulpit.
3. A president also meets real limits: the purse, the Senate's consent, the override and the oversight power are all lodged in Congress.
4. The proper response, for a conservative, is to understand both lists and to resist the temptation to ask either branch to do the other's job.

The veto and the two-thirds override

Start with Article I, Section 7. After a bill passes both houses, it goes to the president. The text says that if he approves it, he shall sign it, and if not, he shall return it with his objections to the house in which it originated. Then: "If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law."

Notice the structure. The veto is the president's check on Congress, and it is a strong one, because it turns a bill that passed by a majority into a bill that requires two-thirds of both houses. The arithmetic is in The Numbers That Run Congress, From 218 to 60 to 290 to 38 and Back: in a full House it takes 290 votes, and in a full Senate 67. A president whose party holds more than one-third of either house can sustain a veto, no matter which party holds the majority.

Alexander Hamilton defended the veto in Federalist 73. He argued that its primary purpose was to let the executive defend his own office against the legislature, and that its second was to increase the chance that the community would be protected against bad laws passed through haste, inadvertence or design. He also made a point conservatives should savor: he expected the power to be used with great caution, and he judged the greater danger to be a president who failed to use it when it was needed.

Two details every citizen should know. First, a bill that the president neither signs nor vetoes within ten days (Sundays excepted) becomes law anyway, unless Congress by its adjournment prevents its return, which is the origin of the pocket veto. Second, the president cannot veto part of a bill; the Supreme Court held in 1998 that the line-item veto was unconstitutional, and the reasoning is in The Line-Item Veto Died in 1998 Because the Presentment Clause Says So.

The Senate's advice and consent

Now the power that Congress holds over the president. Article II, Section 2 says that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." He may also make treaties, "provided two thirds of the Senators present concur."

That clause gives the Senate a real check on judges, cabinet secretaries, ambassadors and other officers. A president facing a Senate of the other party has to nominate people who can be confirmed, or else has to wait. It is a power that Hamilton explained in Federalist 76 as a check on favoritism and an assurance of fitness, and in practice it limits what a president can do with personnel.

There are mechanisms the president retains. He may make recess appointments under Article II, Section 2, Clause 3, which lets him fill vacancies that happen during the recess of the Senate, although the Supreme Court in NLRB v. Noel Canning (2014) held that a recess of less than ten days is presumptively too short for the clause. And a president may use acting officials under the Vacancies Act, though that has limits too, as explained in The Acting Officials Who Run Agencies Without the Senate's Consent. The related question of timing is covered in Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means.

The recommendation clause and the State of the Union

Article II, Section 3 has a clause people forget: the president "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."

Read that carefully. The president does not write laws. He recommends. And the Constitution gives him a platform: the duty, and therefore the right, to address Congress and the country about what should be done. That is the foundation of the State of the Union address, which presidents delivered in writing from Jefferson to Wilson, and in person since 1913.

Under divided government, the recommendation power is one of the strongest tools. A president who cannot pass a bill can still define a debate. He can say what he would sign, and what he would not, and let the public see who stands where. The same clause gives him the power to convene Congress "on extraordinary Occasions." It also says that in case of disagreement between the houses about adjournment, he may adjourn them to such time as he thinks proper. No president has ever used that, which tells you how seriously the framers took the possibility of disagreement and how little anyone has wished to test it.

The power of the purse

The most important limit on any president, in any era, is in Article I, Section 9, Clause 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." The Constitution gives Congress, and only Congress, the power to spend. Article I, Section 7 adds that all bills for raising revenue "shall originate in the House of Representatives," although the Senate may propose amendments.

The consequence for a president in a divided government is concrete. A House controlled by the other party originates the tax bills and, by long practice, the appropriations bills. A president who wants money for a program must get it through a House that may not wish to provide it. A president who wants to cut a program cannot do so by announcement; Congress has already appropriated the money by law, and the question of whether a president may decline to spend it is a standing dispute between the branches. For how the power of the purse can be used to say no, see None of the Funds, How Appropriations Riders Let Congress Say No to an Agency and No Money Shall Be Drawn but by Appropriation, Congress's Power of the Purse.

Conservatives of every era have understood the power of the purse as the people's most effective check on the executive. The English Parliament won it from the Stuart kings in the seventeenth century, and the Founders put it in the legislature's hands for the same reason. It cuts both ways: a Congress that cannot persuade a president can refuse him the money, and a president who cannot persuade Congress can veto what it offers.

Federalist 51 on checks and balances

The theory that ties all of this together is Madison's, in Federalist 51. The famous passage says that ambition must be made to counteract ambition, and that the interest of the man must be connected with the constitutional rights of the place. If men were angels, no government would be necessary. If angels governed men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty is that you must first enable the government to control the governed, and in the next place oblige it to control itself.

That is the philosophy. Each branch is given the means to resist the others and a motive to use them. A president facing a Congress controlled by the other party is not in a crisis. He is in the situation Madison described. The remedy is not to wish the situation away but to use the means the Constitution provides.

Two precedents: 1947-1948 and 1995-1996

History is useful here, because divided government has happened before, and the record is not what the slogans suggest.

1947 and 1948. In the elections of November 1946, Republicans won both houses of Congress for the first time since the Congress of 1929 to 1931, and President Truman, a Democrat, faced the 80th Congress. That Congress passed the Taft-Hartley Act, which amended the labor law of the New Deal era. Truman vetoed it on June 20, 1947, and Congress overrode the veto on June 23, with votes in both houses well above the two-thirds line. It is a clear example of the override working as the framers intended: a Congress with a durable supermajority on a question was able to pass a law over a president's objection. The same Congress also passed the Twenty-Second Amendment's proposal, as we saw elsewhere, and in 1948 Truman ran against what he called the "do-nothing Congress" and won. Read the lesson both ways: a divided government can pass major legislation, and a president can use opposition as a campaign theme.

1995 and 1996. After the 1994 elections, Republicans took both houses of Congress while Bill Clinton, a Democrat, was president. The two sides fought over the budget, and the federal government partially shut down twice: from mid-November 1995 for several days and from mid-December 1995 into January 1996 for 21 days. The public argued about who was to blame. And yet in August 1996 Clinton signed a welfare reform law, after having vetoed two earlier versions, and in 1997 the two sides reached a balanced-budget agreement. The point for our purposes is that a president and a Congress in conflict still produced major legislation. They did so after a fight, with compromise, and with each side claiming credit.

Neither precedent tells you what will happen in 2027. They tell you that the system has worked this way before, and that the result depends on persuasion, timing and the willingness of both sides to take an unlovely deal over no deal.

The steelman: divided government is paralysis

The strongest objection comes from both sides at different times. Divided government, the critic says, means gridlock. Problems pile up, deadlines are missed, the debt rises and voters are cheated of the policies they chose. If the Constitution wanted energy in government, the critic adds, why did it build a system that stalls whenever the White House and Congress differ?

That is a respectable argument and I'll answer it in points.

1. The Constitution did want energy, in the executive, and it wanted deliberation in the legislature. Hamilton's Federalist 70 defends an energetic executive. But energy is not the same as unilateral power. The same document that gives a president the veto gives Congress the purse.
2. Gridlock is not zero. In both of the precedents above, major laws passed. What divided government prevents is the quick, one-party change, and it forces each side to build a larger majority.
3. The alternative is worse. If a president could govern without Congress when Congress disagreed, the separation of powers would be a decoration. See Gridlock Is the Constitution Working, Not the Constitution Failing for the longer case.
4. Conservatives, above all, should hesitate. A conservative who wants a restrained federal government should not be alarmed to find that the government's capacity to act is limited. That is the design.

The temptation of the pen and the phone

There is a pitfall that a president in this position, and his friends, will feel. When Congress will not act, it is tempting to act without it, by executive order, by agency rule or by reinterpreting a statute. That temptation has been felt by presidents of both parties, and conservatives have criticized it, correctly, when the other party did it.

The Constitution gives a conservative a principled answer. Article II, Section 3 charges the president to "take Care that the Laws be faithfully executed." The laws, not his preferences. Article I, Section 1 vests "All legislative Powers herein granted" in Congress. The Supreme Court's major-questions reasoning, as in West Virginia v. EPA (2022), insists that an agency claiming a power of vast economic and political significance must point to clear congressional authority. And Loper Bright Enterprises v. Raimondo (2024) ended judicial deference to agencies' readings of ambiguous statutes. For how rules last after a change in control, see Why a Democratic Congress Cannot Easily Undo a President's Deregulation.

A principle worth keeping is that a power you would not want the other party's president to use is a power you should not ask your own to use. That is a rule worth writing down before it is needed.

What it means for citizens

Citizens have a role. A divided government is the moment when the House's power of the purse, the Senate's power of confirmation and Congress's oversight power all become live. The oversight power, in particular, is a tool a Congress controlled by the other party will use, and you may wish to read about its limits and uses at the oversight page.

The practical steps are not exotic. Read what is actually in a bill before you read what the coverage says is in it. Call the office of your own representative and senator, since members of both parties respond to calls on the matters before them. And remember that the next election is not far off: the House is chosen every two years, which is the Founders' device for making the legislature feel the pulse of the people.

For a look at how earlier defeats were followed by recovery, see Comebacks Start the Morning After, Lessons From the Defeats of 1964, 1974, 2008.

The case in brief

1. The Constitution was built for a president and a Congress that disagree, and divided government is neither a malfunction nor a modern invention.
2. The president keeps the veto, which Article I, Section 7 makes hard to override, the recommendation power of Article II, Section 3 and the power to nominate under Article II, Section 2.
3. Congress keeps the purse (Article I, Section 9), the Senate's advice and consent and the power to override a veto by two-thirds of each house.
4. The precedents of 1947-1948 and 1995-1996 show that divided government can still produce major laws, but through persuasion and compromise.
5. The temptation to govern around Congress should be resisted by conservatives on principle, because a power you would not give the other party's president is a power you should not claim for your own.

What you can do: read Article I, Section 7 and Article II, Sections 2 and 3 at the Constitution page, then call your representative's office and ask where he or she stands on the next spending deadline.