Let’s start with first principles: The Constitution sets forth our governmental structure in its first three Articles.
Article I of the Constitution establishes Congress. Article II creates the presidency. And Article III renders the Supreme Court.
Did you notice that Congress is number one?
That’s not by accident. The Founding Fathers took it for granted that Congress is first among equals within our tripartite government.
Indeed, the Founders feared Congress most of all. In Federalist 47, James Madison worried that Congress’s “impetuous vortex” would swallow up the authority wielded by its coordinate branches.
Ultimately, the Founders feared most the concentration of power, which Madison described as being the “very definition of tyranny.”
For most of its history, Congress has lived up to these expectations. Now, however, our once-grand legislature is a shell of its former self.
With respect to current events, the best evidence of Congress’s fall is the ongoing impeachment debacle.
The Founding Fathers intended impeachment to be Congress’s ultimate weapon in a permanent competition with the presidency. In Federalist 66, Alexander Hamilton wrote that impeachment is Congress’s “essential check” on “encroachments” by the executive branch.
In accordance with these expectations, past impeachments have been part and parcel of structural battles between Congress and the presidency.
Consider President Richard Nixon. Sure, Congress put him through the impeachment wringer, but lawmakers also enacted reforms to shift the balance of power towards Congress. The Legislative Reorganization Act of 1970, for example, beefed up congressional staff and resources. And the Budget Impoundment and Control Act of 1974 attempted to reassert Congress’s power over the purse.
Similarly, the 19th century impeachment of President Andrew Johnson was emmeshed within a larger struggle between the elected branches of government.
Today’s impeachment of President Donald Trump, by contrast, has nothing to do with checking executive power. Instead, it’s all about winning the presidency on behalf of the two political parties.
Getting two-thirds of the Senate to go along with removing President Trump was never going to happen, so instead House Democrats are using the impeachment inquiry to sway next November’s vote.
For their part, Senate Republicans are embracing a trial, reportedly in the hope that a drawn-out process will keep Democratic presidential candidates in the Senate off the campaign trail during the crucial first primaries in Iowa and New Hampshire.
Meanwhile, neither the House nor Senate currently is trying to enact substantive reforms that would rein in executive overreach. Rather than competing with the president, both chambers in Congress are leveraging the proceedings to conduct partisan political campaigns for the presidency.
What’s going on here? Why have the House and Senate, through the impeachment process, become willing cogs in the oily machinery of the 2020 presidential contest?
The answer involves a tectonic shift in American government, from a functioning separation of powers to one that is alarmingly out of whack. To appreciate today’s perverted impeachment process, one must understand how the president supplanted Congress as policymaker-in-chief.
Our imbalanced constitutional process results from three interrelated historical developments.
The first is that Congress, over the last century, has given away, or “delegated,” much of its policymaking initiative to the executive branch. For the most part, Congress delegates to pass the buck. When voters want something done, lawmakers could legislate policy specifics, but they’ll get blamed if they err. By delegating, Congress can escape accountability by having agencies make tough choices.
Thus, Congress has delegated into existence an alphabet soup’s worth of regulatory agencies, which are collectively known as the administrative state.
The second historical development is the centralization of power in Congress under the control of party leaders. When Congress first started giving away its power, lawmakers took pains to oversee their delegations through a system of strong committees in the House and Senate. From the New Deal to the Reagan era, powerful committee chairs vied with presidential appointees for influence at regulatory agencies.
During the last 40 years, however, Congress changed. Demographic shifts led to the end of blocs of southern Democrats and northeastern Republicans. Without these moderate voices, the two parties became more uniform in outlook.
As hive-mentalities were taking hold in Congress, opportunistic leaders, such as former House Speaker Newt Gingrich (R‑GA) and Senate Majority Leader George Mitchell (D‑ME), consolidated power with rules changes, procedural maneuvering, and the distribution of party resources. As power shifted from committees to party leadership, Congress lost the capacity to oversee its delegations.
This brings us to the third historical development. As Congress lost interest in managing agency policymaking, modern presidents have seized undisputed supremacy over the administrative state. Since Nixon, an unbroken succession of presidents tightened the Oval Office’s grip over agency spending and regulatory output, primarily through the administrative state’s brain—the Office of Management and Budget within the Executive Office of the President.
The upshot is that policy now flows from the White House rather than Capitol Hill. In 2018, federal agencies issued 12 rules and regulations for every law Congress passed (3,367 agency rules, compared to Congress’s 291 laws).
Nor are these middling measures. Major economic and social policies—identical to those that Congress considered but ultimately rejected—now regularly emanate from the executive branch.
For example, Congress couldn’t pass immigration reform, net neutrality, nor a carbon dioxide cap-and-trade, but President Barack Obama achieved the same results unilaterally using the power that Congress already had given away.
Republican presidents, alas, are no less guilty of executive excess. To wit, lawmakers denied President Trump funding to build a border wall, but then he exercised his delegated authority to expand the wall without Congress.
In a celebrated law review article written when she was a professor at Harvard University, Supreme Court Justice Elena Kagan wrote that contemporary government is defined by “presidential administration” due to the president’s “comparative primacy [relative to Congress] in setting the direction and influencing the outcome of administrative process.” Today, the president doesn’t merely set the agenda; he controls its creation and execution.
In this context—where the president calls the shots and Congress is beholden to party leadership—half the legislature always is unbothered with unbound executive authority whenever “their guy” occupies the White House.
It’s a vicious feedback loop. The more powerful the president becomes, the more our party-centric Congress rationally believes that the Oval Office is the most efficient means to implement the planks of a given party’s platform.
Of course, the parties whine about executive overreach, but only when they don’t occupy the White House. Neither party seeks to claw back power from the presidency, because each side wants its respective team to exercise executive authority.
So, congressional Republicans cried foul about executive power when President Obama resorted to his “phone and pen,” but then rallied to the support of President Trump when he disregarded Congress’s “power of the purse” in funding the border wall. And Democratic lawmakers now complain about presidential power, even though they gave President Obama an ovation when he threatened to bypass Congress on climate change during the 2013 State of the Union address.
Today’s supine Congress would be unrecognizable to the Founding Fathers. They understood that a concentration of power threatens individual liberty, so they designed a government with three branches—executive, legislative, and judicial—and gave each the means to check the other. By dispersing power into competing institutions, the Founders’ constitutional design serves to protect our individual liberty. At present, this constitutional design is buckling.
As noted above, the Founding Fathers feared congressional power most of all. Federalist 62 warns that an “excess of lawmaking” is a “disease” to which “our government is most liable.” For this reason, the Constitution makes it hard to pass laws. Statutes must be passed by both chambers of Congress, and then signed by the president. It’s an arduous journey for a bill to become a law.
By contrast, it’s far easier for the president to impose a regulation. All he needs to do is pick up the phone to get the ball rolling.
Because all regulations carry the force of law, a government characterized by “presidential administration” incubates the “disease” of “excessive lawmaking” no less than a government controlled by Congress. Overweening government is a threat to liberty, regardless whether it’s flowing from the executive or legislative branch of government.
The solution, of course, is to bring balance back to our separation of powers. Congress must rediscover its institutional ambition, and once again engage in robust competition with the presidency.
So, how do we make Congress great again?
Congress might be compelled to get its act together, even if it doesn’t want to.
For almost 80 years, the Supreme Court has refused to police how much power Congress transfers to the executive branch. Under its “nondelegation doctrine,” the Court allows any delegation, as long as it is bounded by an “intelligible principle.”
In practice, however, the Court construed “intelligible principle” so broadly that the concept has no meaning. Even a phrase as nebulous as “public interest” has met the standard.
For the first time since the New Deal-era, a majority on the Supreme Court has expressed a willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.
Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself vis-a-vis the presidency.
Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.
And it’s not just congressional committees that are understaffed. Congress also has starved support agencies, such as the Congressional Research Service, the Congressional Budget Office, and the Government Accountability Office. These organizations employed 6,354 professionals in 1991; in 2015, the number stood at 3,833.
Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.
Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re-authorized.
Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations. Since Congress created these “legislative vetoes” more than two decades ago, lawmakers have employed this device fewer than 20 times—far less than two percent of the total number of major rules promulgated by agencies during that span.
If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.
And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.
These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a way to avoid accountability.
Most likely, we need a new type of lawmaker, one who is cut from old cloth. Lawmakers of the not too distant past understood that the presidency—and not merely its office-holder—is the Congress’s constitutional rival. To restore crucial safeguards for “We the People,” we must Make Congress Great Again.
