Congress Can and Should Contain the Next President

 

hillary_clinton_donald_trumpOn Tuesday I made the case that this is the most consequential presidential election of my lifetime. That in choosing historically bad presumptive nominees in Hillary Clinton and Donald Trump we have slumped rather than risen to the occasion, and that, as a result, the job of Congress for the next four years will be to contain whichever of them is elected. Today I will expand on those ideas and argue that Trump is more preferable than Clinton at face value and inherently more containable.

During the Cold War our foreign policy across multiple decades and multiple presidents of both parties centered on the idea of containing communism. We weren’t going to try to eradicate it where it existed but we also weren’t going to let it expand into new territories. During the middle of the Cold War we fought hot wars in Korea and Vietnam mainly to enforce containment. Similarly, we will have no choice but to accept whomever is elected President and deal with the reality of their presence in the Oval Office. It will be up to Congress to contain the new President’s ability to do lasting damage to the country.

There are three primary ways Congress can implement a policy of presidential containment.

Assert the power of the purse.

For too long Congress has been unable or unwilling to seriously curb spending and has generally gone along with spending increases and corresponding debt ceiling lifts. Republicans take it on the chin in the media every time the specter of a debt-ceiling-induced government shutdown arises. Republican leaders in Congress need to come up with a strategy to go on the offensive for fiscal responsibility and grow enough of a spine to see the thing through. rather than make the normal announcement ahead of time that they’ll capitulate at the first available opportunity. Denying funding is a first line of defense against bad policy.

Take legislative authority away from the executive.

It has become common practice for Congress to enact broad and vaguely worded legislation giving executive agencies the ability to interpret the law liberally and assign themselves broad regulatory powers. In this way, agencies accumulate power and regulatory authority that Congress never intended them to have but did nothing to prevent. For example, the Clean Air Act was not intended to allow the Environmental Protection Agency to regulate carbon as a pollutant or to enact a cap-and-trade scheme to regulate carbon emissions and shut down coal-fired power plants – an idea that Congress itself has taken up and rejected. In the face of Congressional inaction, Obama’s EPA has hatched a plan to use the bureaucratic rulemaking process to do an end run around Congress and enact cap-and-trade regulations on its own.

Congress can reclaim its authority by amending existing statutes to explicitly limit the scope of laws such at the Clean Air Act, Clean Water Act, Occupational Safety and Health Act, and others that routinely form the basis to expand the legislative power of executive agencies.

Congress can further limit the executive’s law-making abilities by passing legislation to require a Congressional vote of approval before agency rules and regulations, meeting a certain economic impact threshold, can take effect. Congress has considered bills along these lines in the past without success. This should be pursued again with an added provision that regulations meeting a certain penalty threshold would also have to receive affirmative consent from Congress before taking effect. This would prevent agencies from being able to levy excessive and unreasonable fines or send people to prison for violating laws that were not approved by Congress.

Wield the power of impeachment.

Impeachment and removal from office by Congress is extraordinarily rare but there is no particular reason that it should be. The power of impeachment was given to Congress as a backstop against abuse of power by “The President, Vice President, and all Civil Officers of the United States.” Though there is some debate about the definition of the term “civil officers” for the purposes of impeachment, it is clear that at a minimum the term includes federal judges and presidential appointees. Two presidents (Andrew Johnson and Bill Clinton) have been impeached but neither were removed from office. However, impeachment has been successfully used to remove several federal judges and a cabinet member from office. Congressman Alcee Hastings is an impeached former federal judge who was removed from office after being convicted by the Senate. That he later became a member of the House of Representatives is a matter between him and his constituents.

Congress should use impeachment liberally to bring rogue agencies to heel. Is the IRS stonewalling an Oversight Committee investigation? Impeach the agency head and everyone involved in the stonewalling. Is the Department of Veterans Affairs (VA) unwilling to provide proper and timely care for veterans and unwilling to fire corrupt staff who executed the fake waiting list scheme? Impeach them all! The VA would be an excellent place to start the impeachments because it would be seen as the least political from a partisan standpoint and would send a clear message to the other agencies – “get your house in order or we will.”

Impeachment may be one of the easiest ways for Congress to reassert its power as a coequal branch of government because it doesn’t require a presidential signature. It’s something Congress can do entirely on its own.

What can we expect from a Clinton administration?

We already know that a Hillary Clinton administration would be every bit the third term of Barack Obama. Does anyone doubt this? If so, what Obama policies would the prospective President Clinton reverse?

If elected, will a Clinton White House deescalate the culture war? Will Clinton clean up the mess she and President Obama made in the Middle East? Will she appoint originalist Supreme Court justices? Will she instruct the Attorney General to enforce the law rather than conduct partisan crusades and turn a blind eye to laws the administration doesn’t care for? Will she rein in the out-of-control executive agencies? Will she tell the IRS to stand down and stop targeting conservative organizations? Will she tell the EPA to stop running roughshod over property owners and using the bureaucratic rulemaking process to enact policies that could not even pass the same Democrat-controlled Congress that passed the Affordable Care Act? Will she sign legislation to repeal the Affordable Care Act? Will she cut spending and set us on a path to a balanced budget?

No. No, she will not.

We are told by Team #NeverTrump not to worry because Congress will not let Clinton pursue a radical agenda and serve out a third Obama term. That is a ridiculous claim. We can be certain that Congress, even if Republicans maintain control of both houses in 2017, would not prevent her from continuing the disastrous policies of the present administration. We know this because the present Congress has done next to nothing to contain the present administration.

What can we expect from a Trump administration?

If we ask the same questions of a prospective President Trump, the answers, rather than a series of emphatic “nos” will be a series of qualified “maybes,” “possiblies,” “don’t knows,” and “wait and sees.”

We don’t know what President Trump’s policies will look like, how faithfully he will stick to his campaign platform, whether he will repeal President Obama’s healthcare law, whether he will clean house at IRS, DOJ, the VA, or any of the other corrupt, rogue agencies. We don’t know if he will effectively put out any fires in the Middle East or counter an increasingly belligerent Russia in Europe or China in the Pacific. But while we can be certain that Clinton will continue Obama’s policies, we can be reasonably hopeful that Trump will work with Congress to make appropriate course corrections.

Trump will be a uniquely containable President.

And what if President Trump goes rogue? What if his administration is as bellicose, crass, and belligerent as his campaign has been? If that turns out to be the case, Congress can contain him using the strategies outlined above.

By the time he is elected, Trump will have gone out of his way to make enemies of most of institutional Washington on both sides of the aisle. Democrats will oppose him because they are inherently predisposed to oppose a Republican President. He will be on a short leash with Republicans who are embarrassed to be associated with him and who are wary that he will blow up their agenda. They will be looking for ways to weaken him and make him vulnerable to a primary challenge in 2020.

For the first time in a very long time Congress will assert itself as a coequal branch of government. Gone will be the days when executive agencies can withhold information from Congressional committees with impunity, refuse to allow their employees to testify, and run rampant without meaningful oversight. The House Committee on Government Oversight and Reform will be busier, more potent, and more effective than ever before. Trump’s nominees will receive unrelenting scrutiny from both sides of the aisle in the Senate. Bad nominees won’t get a rubber stamp from Republicans simply on the basis of party affiliation.

Indeed, the resurgence of Congress as an coequal branch of government is one foreseeable and welcome silver lining of a Trump victory in November. The power of the executive branch has burgeoned over time mainly because the party controlling Congress is predisposed to give a great deal of latitude to a President of the same party. If Trump wins and if Republicans retain control of Congress, President Trump will not be the beneficiary of the traditional party-affiliated latitude.

Donald Trump, the outsider, the Republican President with no prior history of affiliation with the Republican Party, the policy lightweight, the man of no discernible principles, will be met with a resurgent and aggressive Congress that will have little incentive to sideline its own power and little inclination to let the President burn the country to the ground. We would finally have enough combined Republican and Democrat votes to stop a rogue president in his tracks.

Conventional wisdom tells us that in a choice between two devils we should choose the devil we know rather than the devil we don’t. But in this unconventional presidential election cycle the conventional wisdom is wrong. We are better off settling for the devil we don’t know because despite all the unknowns, we can be absolutely certain that he can’t be worse than the devil we know and we can be reasonably hopeful that he will be significantly better.

In the best-case scenario, Trump will work with Republicans in Congress to reverse at least some of the damage wreaked by the Obama administration. In the worst case scenario, Congress can assert itself to contain the President and wait him out for four years until he can be replaced or impeach him if necessary. For these reasons, I am confident that Trump is far more containable than Clinton which makes him the better choice in November.

All of this, of course, is based on the presumption that Donald Trump will be the Republican nominee; an outcome Erick Erickson and David French have both recently argued is still avoidable. But that is a topic for another day.

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  1. Commodore BTC Inactive
    Commodore BTC
    @CommodoreBTC

    1. power of the purse was never wielded against Obama, won’t be against Clinton/Trump

    2. any law that restrains the executive will be vetoed

    3. zero political will for impeachment

    • #1
  2. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Your best case scenario is within the bounds of reason, but your worst case scenario is light years away from the truly worst case. In fact, it’s pretty good. Trump is contained. Congress reasserts itself, etc.

    The truly worst case under Trump is not predictable. That is why it is so scary. Do you think that when people in Turkey voted for Erdogan they thought they would get an Islamist tyrant? Or even better, that in Venezuela when they voted for Chavez and Maduro they thought, “Worst case, he destroys the country and there will be no food, no electricity, no gasoline, and no toilet paper?” Or that in Russia when they voted for Putin they would get a dictator for life?

    I prefer to think that the worst case under Hillary is exactly what you said, four more years of Obama. I don’t like it one bit, but I can live with it. I have no idea at all what life will be like under Trump. No idea at all.

    • #2
  3. Dave_L Inactive
    Dave_L
    @Dave-L

    I’m glad we’re finally getting around to this…would have been nice six years ago.

    • #3
  4. BrentB67 Inactive
    BrentB67
    @BrentB67

    Congress, assert the power of the purse? You are killing me with this smalls.

    • #4
  5. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    It is possible—I repeat, possible—that congress, alarmed by Trump and (to a lesser extent) Hillary, will assert itself. Since Trump is both wackier and less accustomed to the Hill and its ways, he may well provoke more containment. In fact, if congress is, even now, seriously considering what to do about the problem of presidential over-reach, that’s one good thing that could come out of this election and/or a Trump presidency.

    I don’t think Hillary will only be another Obama term. I don’t think she has nearly as much of the confused attachment to identity politics that Obama has, for one thing, and she has too strong an ego to be merely   Obama Take Four. Also, she won’t get away with as much because, try as she might, her candidacy just isn’t as magically historic as his was. (If life for black Americans continues to deteriorate, she won’t have Obama’s “get out of blame free” card, to name just one handicap) And she’s not nearly as charismatic.

    Like the homely guy who has to develop a great personality, a president who lacks charm, interest and a silver tongue will need to perform. Since she’s unprincipled, she’ll pivot. That’s what I’m hoping, anyway.

    • #5
  6. Publius Inactive
    Publius
    @Publius

    I’d also like to see Congress get much more serious when it comes to taking on the Imperial Supreme Court through impeachment, jurisdiction stripping, and just generally imposing Constitutional literacy litmus tests for the confirmation of justices at all levels of the system.

    The Constitution wasn’t set up for Congress to be the weakest of the three branches of government, but that’s where we are at right now as a society and we’re paying a very heavy price in terms of our liberty because of it.

    • #6
  7. Randy Webster Inactive
    Randy Webster
    @RandyWebster

    If Trump is elected, and the Republicans lose control of Congress, there’ll be containment.  If Hillary is elected, and the Republicans retain control of Congress, no containment.  God only know what happens with Hillary and a Democrat Congress.

    • #7
  8. Nathanael Ferguson Contributor
    Nathanael Ferguson
    @NathanaelFerguson

    BrentB67: Congress, assert the power of the purse? You are killing me with this smalls.

    A man can still dream, no? And besides, if Congress is unwilling to step up and use it’s primary constitutional check on the Executive what’s the point of having a Congress in the first place?

    • #8
  9. Nathanael Ferguson Contributor
    Nathanael Ferguson
    @NathanaelFerguson

    Publius: The Constitution wasn’t set up for Congress to be the weakest of the three branches of government, but that’s where we are at right now as a society and we’re paying a very heavy price in terms of our liberty because of it.

    Yes! It seems to me that a Trump presidency is about the only real catalyst that can move Congress to restore its rightful place in the balance of power.

    • #9
  10. Nathanael Ferguson Contributor
    Nathanael Ferguson
    @NathanaelFerguson

    Kate Braestrup: Like the homely guy who has to develop a great personality, a president who lacks charm, interest and a silver tongue will need to perform. Since she’s unprincipled, she’ll pivot. That’s what I’m hoping, anyway.

    I don’t think her base is geared toward pivoting. This is not the Democratic party of 1992 – she’s going to have a very hard time doing anything centrist even if she wants to. The entire party has just moved too far left/progressive.

    • #10
  11. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Nathanael Ferguson:

    Kate Braestrup: Like the homely guy who has to develop a great personality, a president who lacks charm, interest and a silver tongue will need to perform. Since she’s unprincipled, she’ll pivot. That’s what I’m hoping, anyway.

    I don’t think her base is geared toward pivoting. This is not the Democratic party of 1992 – she’s going to have a very hard time doing anything centrist even if she wants to. The entire party has just moved too far left/progressive.

    Yeah… that’s what I’m afraid of.

    • #11
  12. Probable Cause Inactive
    Probable Cause
    @ProbableCause

    The difficulty is that Congress has 435 representatives and 100 senators.  They can easily be divided and conquered by a unitary executive with a bully pulpit.  Especially since many of those congresspeople are members of the president’s party.  Furthermore, if the president’s party begins with a “D”, the fourth estate won’t hold him/her accountable.

    • #12
  13. Poindexter Inactive
    Poindexter
    @Poindexter

    No matter what, Congress will thwart Trump and enable Clinton.

    • #13
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