The Ripon Forum

Volume 51, No. 2

April 2017

COEQUAL OR CO-OPTED?

By on April 26, 2017

How Congress can restore its rightful role in government

by MICKEY EDWARDS

There’s nothing new about American Presidents chafing at constitutional restrictions on their authority.  George Washington argued that provisions in a treaty that his administration had negotiated superseded the Constitution’s requirement that no money be spent by the federal government unless it had first been appropriated by Congress.   The Supreme Court ruled that Andrew Jackson’s plan to forcibly resettle American Indian tribes was unconstitutional; he went ahead with it anyway.  In the Civil War, Abraham Lincoln suspended habeas corpus and only turned to Congress after the fact.  Woodrow Wilson railed against constitutional constraints on the presidency.  Franklin Roosevelt attempted to enlarge the Supreme Court in order to pack it with justices who would support his efforts to take actions outside the scope of his constitutional authority.  Harry Truman attempted to seize control of the steel industry.  Truman also sent American troops to war in Korea without congressional authorization; nearly 37,000 Americans were killed and more than 100,000 wounded.  Bill Clinton relied on “authorization” from NATO and the UN Security Council to launch attacks in Bosnia.   To Donald Trump, America’s armed forces are “my military.”

Did George Washington harbor secret monarchical ambitions?  Was Wilson, who had been president of Princeton, uneducated about the American system of government?  Of course not.  Presidents are human beings, and all of us — if we believe we see something as necessary to do for the good of all, and for a President that means quite specifically for the good of the country — that’s what we’ll do if we think we can.  One can oppose such actions and attempt to prevent them (the Courts blocked Truman’s attempt to take over an industry, a Congress controlled by his fellow Democrats stopped FDR from packing the court), but we should begin with the clear-eyed understanding that any President — a Washington, a Lincoln, an Obama, a Bush — will push the envelope and try to do whatever can be gotten away with.

Madison appears to have been unable to imagine a Congress full of men and women who would increasingly act as though they were water-bearers for the executive.

James Madison’s brilliance was his ability to think systemically.  He agreed with Hobbes that governments were needed (he strengthened the federal government, he didn’t weaken it), but he knew that the people in charge of running the place – presidents and members of Congress — would have to be kept in check by specific constraints.  One of those constraints came in the form of clear delegations of authority, the assumption being that if no such authority had been delegated, that authority did not exist.  The later addenda to the original Constitution, the Bill of Rights, gave more specificity to some of those non-grants of authority.  But the other check on abuse of power came from the same understanding of human nature.  Not just presidents but anybody in possession of power would have a natural inclination to take it as far as possible, even if the intent in doing so was honorable and admirable.  Ergo, ensure that the ambitions of those occupying coequal power centers would suffice to maintain a balance: presidents would be checked not only by the Constitution, but by Congress, whose members would fight to maintain their own rightful powers and challenge any attempts to undermine it.

The Path to Capitulation…
Clearly, Madison was no Nostradamus: he imagined a Congress of men who would cloak themselves in the legitimacy of their powerful institution.  He appears to have been unable to imagine a Congress full of men and women who would increasingly act as though they were water-bearers for the executive.  Although the President’s main duty — other than serving as commander in chief of the armed forces and keeping a veto pen close at hand — is to see to it that the laws (which Congress writes) are faithfully executed, members of Congress today see themselves as either the President’s minions (if he is of their party) or his enemy (if he is of the other party).  Worse, there is precious little evidence that members of Congress in recent decades even understand what the Constitution requires of them.

Two illustrations stand out.  In 1973, frustrated by long-running U.S. involvement in war (Korea and Vietnam) without congressional authorization, Congress enacted the War Powers Act, even overriding a presidential veto in a purported attempt to erect a fence around presidential military adventurism.  The Act restated the constitutional requirement that going to war required Congress’s prior approval unless the U.S., its territories, or its armed forces had been attacked.  So far, so good.  But the act also inexplicably undermined its own relevance by granting presidents authority to send American troops into combat for up to 60 days (90 if one counts the battles that would inevitably occur during a 30-day “withdrawal” period), even without Congress’s authorization.  A great many American servicemen could be killed in a 90-day war, but members of Congress — constitutionally charged with ensuring that no Americans would be sent to war without  their representatives’ approval — had given presidents carte blanche pre-approval for future wars with no preconditions.  No limits on numbers of troops, no insistence on necessary conditions of provocation or threat.  Even a simple presidential desire to show off American greatness would be acceptable under the terms of the Act.  It’s impossible to imagine a more cavalier disregard for the trust the Founders had placed in the Congress’s ability to check presidential ambitions.

The second illustration is far less momentous but equally telling.  I’m on the board of an organization called the Project on Government Oversight, which has as its goal providing an outside supplement to Congress’s duty to ensure that the executive branch is ‘faithfully executing’ the laws Congress enacted.  At one of the organization’s briefings, a senior Senate staff member expressed frustration that executive branch agencies were not responsive to his office’s requests for information under the Freedom of Information Act.  FOIA requests are what reporters use to pry data from government.  It’s the means private citizens, including academics, use to get government information that is not publicly available.   Congress has other tools: hearings, public and private, which can be used to grill agency heads; limitations and contingencies in appropriations bills (the power of the purse should not be underestimated); in the Senate, holding up confirmation of presidential appointments (when it comes down to it, president’s don’t actually appoint, they nominate).  Implicit in the staffer’s question and not untypical of congressional attitudes is that the Senate was the supplicant and the Executive was the power.  Is it any wonder that during the recent battle over federal health care legislation, the Speaker of the House felt it necessary to adhere to the President’s orders both as to scheduling debate and pulling legislation from the floor?

Is it any wonder that during the recent battle over federal health care legislation, the Speaker of the House felt it necessary to adhere to the President’s orders both as to scheduling debate and pulling legislation from the floor?

Partisan tribalism, lack of institutional pride, and either ignorance or lack of interest in constitutional obligation have combined to essentially reframe American government from a Constitution-centered system intended to force deliberation and compromise to a presidentially-driven mini-monarchy increasingly subject to magisterial whim.   Perhaps Madison did not understand human nature as well as he thought.  Perhaps an unforeseen democratization of the American political process made today’s pyramid-shaped governmental structure inevitable.  Regardless, it’s important to understand that the current state of affairs is as much a failure of Congress as presidential power grabs.

…and the Road to Reform
So what can be done to re-establish the Congress as the co-equal (and in most respects, principal) branch of the federal government?  Well, several things, actually.

– First, re-establish the habit of vigorous oversight.  Congress has subpoena power and the power to hold witnesses and potential witnesses in contempt.  Return to the fundamentals of “regular order,” allowing serious debate and amendments that challenge legislative proposals, reducing the party-centric control of partisan leaders and returning power to congressional committees, which would be more likely to jealously guard their constitutional prerogatives by demanding information and using existing authority to punish those who withhold it.

– Understand the scope and range of congressional authority.  The Supreme Court has a superb track record in blocking attempts at presidential overreach, including in the realm of foreign policy, repeatedly striking down the notion that legislative power is limited when international affairs are considered.   Take no guff from the White House:  Congress has the authority and a constitutional mandate to keep a check on the executive, and yet both the House and Senate inexplicably allow the executive branch to tell Congress, including members of the House and Senate intelligence committees, what information they may see (thousands of federal bureaucrats, and even non-governmental contractors, often know the contents of classified material that is kept secret from members of Congress).  Congressional leaders and chairs of the two intelligence committees meekly go along with White House commands that they not share information with key members of their staffs (even those with security clearances) or with other members of Congress, all of whom have taken an oath to uphold the Constitution, the result being to deny the Congress the information it needs to keep a check on the Pentagon, the CIA, the NSA, and the rest of the web of taxpayer-funded agencies.

– Use both the authorization and appropriations authorities seriously.  Congress writes the laws and determines what can be spent and on what.  Challenge attempts by the executive to go around the legislature with executive orders or agency directives that do not comport with congressional intent.  If the White House is not forthcoming with the information the Congress needs, withhold funding or make it contingent.  Besides the war power, the greatest piece of the legislative arsenal is the power of the purse.  Congress should be prepared to use it aggressively to ensure that the peoples’ representatives are able to exercise the authority the Constitution assigned to them.

– Act collectively and in a bipartisan way to ensure a hearing by the Supreme Court when members of Congress make a claim that a presidential action has undermined their ability to perform their constitutional duties.  In 1978, I filed a lawsuit on behalf of myself and a total of 60 House members (Edwards v Carter) arguing that a treaty submitted to the Senate contained provisions that required House approval. By disallowing a separate House consideration of that provision, we were denied the ability to perform our constitutionally mandated legislative duty.  Because 60 of us acted absent a formal House resolution, the appellate federal Court dismissed the case on a split decision solely on the grounds that we lacked standing.  Even if the House Speaker or Majority Leader of the Senate disagree with the position of members who make a strong case that the Congress’s voice has been silenced, a formal declaration for court consideration would enhance the ability to stand on equal footing with the White House.

– Similarly, refuse to allow treaties and trade agreements to be considered under “fast track” rules that deny legislators the ability to amend the White House’s agreements.  Perhaps if some recent trade agreements had received a more thorough vetting by legislators and more opportunity to watch out for the interests of American workers, the result of last year’s presidential election might have been different.

It often appears that many members of Congress have no clue as to what the Constitution requires of them.

– Presidents submit budgets not because they are entitled to determine how the government spends its money but because Congress has required presidents to compile the spending wish lists from the executive branch.  White House budget submissions were intended to help inform legislators as they made their own actual decisions.  Today, driven by hyper-partisanship, if the White House and congressional majorities are drawn from the same political party, political budget submissions are taken not as data but as a guide.  Determining a federal budget, what and how much to spend, what taxes will be required and where they will come from, are prime duties of the legislative branch and the Congress should reassert a leading role in making those determinations.

A front-page article in the April 16 Washington Post summed up the situation rather neatly: “For congressional Republicans, the challenges are . . . getting clear direction from the White House about the shape and scope of the agenda for the remainder of the year.”  On taxes, the Post article note, “it is not even clear who in the Trump administration . . . is taking the lead, or whether House Ways and Means Committee chairman Kevin Brady (R-Tex) will eventually be called upon to craft a compromise.”  But the legislative agenda is the Congress’s to formulate.  And the determination of tax policy is the responsibility of the legislative branch of government.  As New England Patriots coach Bill Belichick is prone to say to his players, “just do your job”.

– Finally, empower the Congressional Research Service to provide mini-courses on the Congress’s constitutional powers and duties, and require every new member of the House and Senate to take the course upon election and periodically thereafter, in order to gain a committee seat or a leadership position.

The problem is long-standing and difficult: it often appears that many members of Congress have no clue as to what the Constitution requires of them.  Perhaps some of these approaches might over time help redress the balance between the branches and return us to something closer to the constitutional model the Founders envisioned.   The Constitution did not make the Congress the principal repository of federal authority because its authors thought the Congress would be infallible.  Rather, in a hybrid governmental system, a republic in form but a democracy in the selection of leaders, the Founders believed that by giving Congress the power to tax, spend, and go to war, the ultimate authority would rest with the people themselves.  When members of Congress surrender this authority, it is not themselves they are betraying.  It is the American people.  That is why the balance of powers must be restored.

Mickey Edwards, a former member of the Republican leadership in Congress, is a vice president of the Aspen Institute and the author, most recently, of “The Parties Versus the People: How to Turn Republicans and Democrats into Americans.”

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