Can Congress Get Its Swagger Back?
According to the Constitution, the legislature is the first and most powerful branch of government. And yet, many believe — on the left and the right — that the institution has atrophied.
By all accounts, House Speaker Paul Ryan is eager to change that. He has his work cut out for him.
At the Republican congressional retreat in Baltimore last week, I participated in a panel discussion about how to revive Congress’ traditional role. It was off the record, but I can certainly repeat a story I told. When my father was in the Army, he was stationed in Japan. His commanding officer, a master at maneuvering the military bureaucracy, gave him one piece of advice. “Goldberg, it’s always better to be on the committee that says, ‘This must never happen again.'”
In other words, it’s easier to wag a finger at mistakes than to be accountable for them. Congress has largely become a finger-wagging bystander. It’s great at expressing outrage. But when it comes to the messy work of legislating, it’s fallen down on the job.
This is true even when it writes “landmark” laws. The Affordable Care Act, for example, isn’t so much a piece of legislation as a letter of marque for the Health and Human Services secretary to chart whatever course she pleases. The law contains more than 2,500 references to “the Secretary,” as Philip Klein reported in 2010 in The American Spectator. In 700 of them, the law says she “shall” do X and in another 200-plus instances it says she “may” do Y. In 139 instances, it simply says the “Secretary determines.” This is just one example of how Congress routinely vests legislative power in the executive branch.
Other aspects of Congress’ authority have been hacked away and sold off in pieces. The Constitution says only Congress can levy taxes. The founders had this crazy idea called “no taxation without representation.” And yet, numerous agencies are self-funding, raising money without having to worry about Congress’ power of the purse. For example, the Consumer Financial Protection Bureau gets its revenue from a skim of the profits from the Federal Reserve.
Not only are such arrangements a hate crime against the Constitution, they also make agencies less accountable to Congress and, by extension, the people. These agencies are, furthermore, often unaccountable to the judicial branch. Bureaucrats have their own administrative courts, which routinely deny traditional due process to plaintiffs.
The executive branch was never supposed to be this powerful. Richard Neustadt famously wrote in Presidential Power that the presidency is an inherently weak office and therefore the president’s chief power is “persuasion.” For decades, presidents took Neustadt’s argument to heart, using the bully pulpit to rally public opinion to their side.
President Obama has certainly tried to do that. But it’s turned out that his powers of persuasion have been greatly exaggerated, particularly in this age of polarization.
Unable to coax the country in his direction, Obama has relied on his beloved “pen and phone” strategy — that is, signing executive orders — often to the cheers of congressional Democrats apparently eager to celebrate their institutional gelding. The Hudson Institute’s Christopher DeMuth argues that Obama is the first president to recognize that Neustadt is obsolete and so is the notion of a lame duck presidency. Obama can keep making policy right until the day he leaves office.
The challenge for Ryan is multifaceted. He wants to restore Congress’ primacy, but to do so he must also transform the GOP into what he calls a “proposition party,” not an opposition party (which may be difficult if Obama does everything he can to invite opposition from conservatives). Both require time he may not have. Clawing back the legislative function can’t be done overnight and requires a cultural transformation of Congress itself.
Meanwhile, both parties’ front-runners don’t seem interested in deferring to Congress. Hillary Clinton has already said that Obama’s unilateralism hasn’t gone far enough, and vowed to go further. Donald Trump promises to just make stuff happen via his superhuman management skills.
We already know liberals will applaud an imperial Democratic president. I can only hope conservatives will stick with Ryan under a Republican one.
Jonah Goldberg is a fellow at the American Enterprise Institute and a senior editor of National Review. You can write to him in care of this newspaper or by e-mail at [email protected], or via Twitter @JonahNRO.
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