Reviving a Constitutional Congress

Christopher DeMuth
Distinguished Fellow, Hudson Institute

Christopher DeMuthChristopher DeMuth Sr. is a distinguished fellow at the Hudson Institute. He served as president of the American Enterprise Institute from 1986–2008. A graduate of Harvard College and the University of Chicago Law School, he worked as a staff assistant to President Richard Nixon in 1969–1970 and as an administrator in the Office of Management and Budget and executive director of the Presidential Task Force on Regulatory Relief under President Ronald Reagan. From 1976–1980, he taught at the Harvard Kennedy School of Government and directed the Harvard Faculty Project on Regulation. He has also practiced law, and was for a time publisher and editor-in-chief of Regulation magazine.

The following is adapted from a speech delivered on September 15, 2015, at Hillsdale College’s Sixth Annual Constitution Day Celebration in Washington, D.C.

Our Constitution is often treated as a reliquary, worthy of reverence but no longer of much practical use. Yet the Constitution reflects, in many deep and subtle ways, the character of the people who established it and have lived and prospered under it for centuries. This is particularly true of its structural features of federalism and separated powers, which vindicate Americans’ democratic nature, our distrust of power, and our taste for open competition.

The struggle for power and advantage is a constant of human society. In democracies, that struggle is organized and advertised through political campaigns and elections. It is equally present within government, but there it is not always observable. In the parliamentary systems of Europe, open competition ends with the election returns and formation of a government. At this point legislative and executive powers are fused. Struggles over policy continue, but they work themselves out in private within ministry offices and leadership councils. A well-led government can present, at least for a time, a unified, dignified, self-confident public face.

That is seldom possible in the American system, where competition in government is exposed for all to see. The two political branches possess separate electoral bases and are assigned powers that are partly shared and partly independent. They are co-dependent and must work out their differences in public. Presidents, executive officials, and members of Congress may bring astute tactics and compelling rhetoric to the task, but in the heat of contention they are also prone to diatribes, bluffs, missteps, backtracking, and humiliations. Dignified the process is not.

Parliamentary systems have their strengths, but open competition is the American way. Checks and balances are important means of policing the corruption and abuse that arise whenever power is monopolized. They are also means for pursuing two things that Americans care about especially: limited government and humble leaders. The sheer cumbersomeness of our constitutional structure usually requires extended negotiation leading to a substantial consensus before the government can act. And the spectacle of continuous public extemporizing makes it difficult for our leaders to pretend that they command events.

Yet our system depends on a reasonable balance of power among the three constitutional branches, and we are losing that. In recent decades power has shifted dramatically away from Congress—primarily to the executive but also to the judiciary.

Part of the shift has resulted from presidents, executive agencies, and courts seizing congressional prerogatives. This part of the story has been much in the news. President Obama has effectively rewritten important provisions of the Affordable Care Act and immigration law, while circumventing the Constitution’s requirement of Senate approval for senior executive appointments. The Environmental Protection Agency has contorted the Clean Air Act beyond recognition to regulate carbon dioxide and other greenhouse gasses—and has done so after Congress declined to embark on such regulation. The Supreme Court has acquiesced in most of these executive usurpations, while taking for itself the authority to decide live political controversies. It played both roles last June, first approving the Obama administration’s unilateral extension of tax credits to persons who purchase health insurance on the federal Obamacare exchange, then declaring same-sex marriage a constitutional right.

But the most important part of the story has an opposite plot: Congress itself, despite its complaints about executive and judicial poaching, has been giving up its constitutional powers voluntarily and proactively for decades. Since the early 1970s, Congress has delegated broad lawmaking authority to a proliferating array of regulatory agencies, from EPA and OSHA in the early years to numerous executive councils, boards, and bureaus under Obamacare and Dodd-Frank in 2010. In the new dispensation, members of Congress vote bravely for clean air, affordable health care, and sound finance, while leaving the real policy decisions to executive agencies.

In recent years, Congress has even handed off its constitutional crown jewels—its exclusive powers, assigned in Article I, Sections 8 and 9, to determine federal taxing and spending. Several executive agencies now set and collect their own taxes or generate revenues in other ways, and spend the proceeds on themselves or on grant programs of their own devising, without congressional involvement. Most members of the current Congress cannot even remember the days when that body passed annual appropriations, agency by agency, often with riders directing how the agencies may and may not spend the funds. More recently, following its hapless efforts to use the debt ceiling to force policy concessions from the administration, Congress washed its hands of the borrowing power, too, telling the Treasury that it may borrow as needed to pay the government’s bills for a set period of time.

Today the consequences of congressional self-enfeeblement are vividly on display. Congress is under management of conservative Republican majorities in both House and Senate, and is facing a left-progressive President with a big agenda. One would think that Congress would be busily reclaiming its constitutional authorities and exercising them to moderate—not check, but at least balance—the President’s actions. But that is not happening.

A harbinger of the current disarray came shortly after last year’s elections, when President Obama announced unilateral revisions to immigration policy. Congressional Republicans promptly announced that the new Congress would forbid those changes with a rider to the appropriations of the Citizenship and Immigration Services agency. A few days later came an embarrassed retraction: staff had discovered that the CIS finances itself through fees and is independent of congressional appropriations.

Congress could have put the agency back on regular appropriations, but as things have turned out even that wouldn’t have helped, because Congress is unable to pass any appropriations bills (there are supposed to be 12 of them, covering various sets of executive agencies). Instead, it is obliged to resort once again to a Continuing Resolution (CR)—a last-minute blunderbuss statute that extends the previous year’s entire federal budget with broad percentage adjustments.

The CR surrenders Congress’s power of the purse. When Congress is appropriating individual agencies, it can adjust program spending and policy elements on a case-by-case basis. It doesn’t always get its way in the face of a possible presidential veto, but at least Congress is in the game, with a multitude of tactics and potential compromises in play. In contrast, the threat of shutting down the government is disproportionate to discrete policy disagreements. The tactic would be plausible only in the rare case where congressional opinion amounted to veto-proof majorities in both chambers. Even when Congress thinks it has the President cornered with an unpopular position, as in the wake of the horrible Planned Parenthood revelations, the game of CR chicken always comes down to a national crisis where the President—always at the center in times of crisis and able to control the terms of public debate—has the upper hand.

President Obama’s current strength is complementary evidence of constitutional drift. Since his party lost control of the Senate last November, he has launched a fusillade of aggressive executive initiatives, such as subjecting the Internet to comprehensive regulatory controls. I think he was within his constitutional rights on the Internet matter; but such a monumental change in national policy, almost certainly opposed by majorities of the relevant House and Senate committees, would have been inconceivable in the recent past.

The fact that President Obama is not a lame duck is not due to his popularity. His public approval ratings have been in the mid- to high-40s and lower than his disapproval ratings, and he is widely disliked in Congress by members of both parties. It is rather that the nature of the presidency has changed since the Twenty-Second Amendment limited presidents to two terms. In Presidential Power, a landmark study written during the Eisenhower administration, political scientist Richard Neustadt argued that presidents occupy an inherently weak office, and must devote themselves to continuous persuasion, popularity seeking, and cultivation of Congress in order to advance their agendas. This book became the operations manual for President Kennedy and all subsequent presidents—until now. The evolution of executive branch autonomy has transformed the presidency into an inherently powerful office, regardless of whether its occupant is well liked. President Obama and his advisers are the first to have realized that Neustadt is obsolete—that whatever his polls, the President has the wherewithal, using executive agencies, to make law and policy on his own through noon on January 20, 2017.