Wanted: A Jealous Congress


One of the more depressing aspects of recent constitutional history is the decline in institutional opposition between the branches of our Federal government.

Institutional opposition stems from the separation of powers described in the Constitution, in which the three branches of government exist as separate and co-equal institutions, each with their own prerogatives and responsibilities.  If Congress were, for instance, to negotiate a treaty directly with a foreign power, the President should oppose the action on the grounds that Congress has usurped his rightful authority.  Likewise, if the President attempted to take out a loan on behalf of the country, Congress should should rightly raise Hell.  Whether the president and congress* agree on the substance of these issues should be irrelevant; the point is that each is wrongly poaching on the other’s territory.

Building these tensions into the very structure of our government is widely — and correctly — seen as one of the Framer’s greatest insights.  Unfortunately, Madison and the other Framers failed to see how partisan politics would influence, and eventually supplant, institutional opposition as the primary means of checking and balancing our government.  As he wrote in Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied.

Would that it were so.  But for reasons obvious to us — if not James Madison — a Republican congress is poorly-motivated to check a misbehaving Republican president, just as a Democratic president has relatively few reasons to pursue an errant congress of his own party.  The only time, it seems, that we can expect our government to (not) work the way it was intended, is when we have a divided government.

The problem is hardly a new one: the Democratic-Republicans of the 7th and 8th congresses were woefully deferential to President Jefferson, and the battles over the Tenure of Office Act were partisan to the core.  That said, things have been particularly bad of late, confounded further by the presidents generally winning these battles.  Not only was George W. Bush allowed to send HHS Secretary Tommy Thompson to the House of Representatives to twist arms to ensure Medicare Part-D’s passage, the Republican leadership actually extended the voting period (an unprecedented) three-hours to allow Thompson to work the floor.  Republican leaders further allowed Bush to use signing statements in an unprecedentedly aggressive way, and seemed wholly untroubled by being sold the Iraq War on faulty intelligence.

President Obama has gone even further, ignoring or amending portions of the ACA at will, bombing Libya without even pretending to to consult congress beforehand, and consistently pushing the executive’s surveillance powers, even to the point of spying on congressional staff.  It takes an unusually myopic, narrow-minded, partisan mind for a Senate Majority leader to ignore these repeated encroachments, but Harry Reid seems to have been born to the role.

This is not to say that there has been no recent opposition between the executive and legislative branches; one need only think of the IRS hearings, the investigations into Scooter Libby’s disclosing Valerie Plame**, or the impeachment of President Clinton.  The problem is that these push-backs would never have happened absent partisan motivation.

Since the problem lies in human nature, no solution will be perfect.  However, it can be ameliorated by electing congressmen who are willing to fight for their institutional prerogatives against the executive branch for reasons that go beyond partisanship.  That means a Congress that is less inclined to defer both to the president and to the vast, entrenched bureaucracies that make up so much the executive branch even when there is little partisan reason to do so.

The good news is that some elements of the current congress appear to have rediscovered congressional prerogative.  Though likely led by the renewed emphasis on constitutionalism created by the Tea Party, a small-but-telling example of this trend is Rep. Ted Poe (R-TX) and Zoe Lofgren’s (D-CA) effort to reclaim regulation of aerial drones by the government from the Federal Aviation Administration to Congress.  Speaking on the Cato Daily Podcast, Poe described the issue as follows:

Currently, the FAA determines who may and may not obtain a drone in the United States and for what purpose.  The FAA should not have this responsibility [emphasis added].  Congress should make the rules, not the FAA on who gets a drone and who doesn’t get a drone.  They’re a bureaucracy.  Their reasoning, to me, is arbitrary on who may use a drone.  That’s why congress weigh-in on this issue — not wait for the courts — and protect the fourth amendment right to privacy…

Getting congress to take more responsibility for something is never going to be easy, and we have to be sure that we don’t over-correct the problem by making the president overly deferential to every legislative whim.  Genuine competition between the branches that goes beyond mere partisan checks, however, is sorely needed.

* There’s a strong case to be made that while the judiciary does a passably good job at restricting the executive, but has completely dropped the ball when it comes to the legislature. For the sake of simplicity, however, I’m restricting my argument to the president and congress.

** This post original described Libby as “firing” Plame.

Photo Credit: US Capitol west side” by Martin Falbisoner – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

There are 9 comments.

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  1. Albert Arthur Coolidge
    Albert Arthur

    Interesting piece, Tom. Also, congratulations on the “, Ed.” thing.

    However, I will nitpick and say that the so-called faulty Iraq WMD intelligence really had absolutely nothing to do with executive overreach.

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  2. Tom Meyer Contributor
    Tom Meyer

    Albert Arthur: However, I will nitpick and say that the so-called faulty Iraq WMD intelligence really had absolutely nothing to do with executive overreach.

    Agreed, though I meant to present it more as an example of congressional underreach.  Certainly by 2005 or 2006, Congress should have hauled Powell and the others back to explain how they came to rely on such faulty evidence in their presentation to this hallowed chamber, etc, etc.  Instead, they shrugged when they should have been angry.

    (For the record, I supported the Iraq War and think toppling Saddam was necessary after 9/11 regardless of WMD.)

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  3. user_86050 Inactive

    So long as their continued existence depends on party support, politicians will obey the party rather than follow Madison’s plan. Madison’s plan won’t get them elected. 

    If I were running, and my opponent was a partisan seat-holder, I’d run an ad which showed my opponent wearing masks of Obama, Harry Reid, and Nancy Pelosi … and then have the announcer say that a vote for [opponent] is no different than a vote for these clowns, because party leaders dictate how that opponent votes … not you. As it is, that’s the truth.

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  4. genferei Member

    As comes out in the last part of the OP, the problem is not so much the President, but the permanent government of the bureaucracy, for whom Congress, Cabinet and President are merely shifting elements to be played off against each other in the Great Game of accruing ever more unaccountable power. Thus programs are immortal, budgets forever rise, and more and more taxpayer dollars are spent on ‘lobbying’ the ‘Government’ for extensions to these same programs, departments, bureaus, commissions and the thousand other organs of ‘citizen’ control.

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  5. user_331141 Inactive

    Congrats to Ricochet’s newest editor.

    • #5
  6. user_331141 Inactive

    This is a topic Conservatives would do well to pay more attention to and I’m glad Tom is raising it. To me what sets conservatives and libertarians appart from progressives is the focus on process over outcome. Justice Thomas often alludes to his principles sometimes leading to unconservative outcomes. A conservative of a lesser mind might berate him for this, but those that truly understand the design of the government the founders set out to create know that how we arrive at our decisions is often more important than the decisions themselves.

    Alas, as KC says, out political system makes it hard for politicians who care more about process to be elected, but it is not impossible. Rand Paul, Justin Amash, Tom McClintock and Ted Cruz are all politicans I would say care as much, or more, about process than they do about outcome.

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  7. Mark Krikorian Contributor
    Mark Krikorian

    Gibbon’s observation on the growing irrelevance of a legislature that was not jealous of its rights is apropos:

    “In the exercise of the legislative as well as of the executive power, the sovereign advised with his ministers, instead of consulting the great council of the nation. The name of the senate was mentioned with honour till the last period of the empire; the vanity of its members was still flattered with honorary distinctions; but the assembly, which had so long been the source, and so long the instrument, of power, was respectfully suffered to sink into oblivion. The senate of Rome, losing all connection with the Imperial court and the actual constitution, was left a venerable but useless monument of antiquity on the Capitoline hill.”

    “A venerable but useless monument of antiquity” seems to be the way Obama views Congress, and Congress views itself. Mickey Kaus’s description is similar: an “archaic elected legacy institution.”

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  8. TG Thatcher

    Point of information:  Scooter Libby was not the person who “disclosed” Valerie Plame, my inderstanding is that it was Richard Armitage. 
    From a column by Victor Davis Hanson ( http://pjmedia.com/blog/presidential-pardons-whos-most-deserving/ ):   “Although he was investigated for leaking the name of CIA agent Valerie Plame, Libby was not even indicted for that crime.  Scooter was convicted of lying and obstructing the investigation into the actual leaker.”

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  9. Quinn the Eskimo Member
    Quinn the Eskimo

    Congress likes to spend money, cast votes that stir up the base and enjoy the perks of power.  Otherwise it will delegate all of its responsibilities to the president or the administrative agencies.  Loyalty to the party trumps loyalty to the Constitution and we’ll pay for that eventually.

    • #9

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