The Future of Congressional Supremacy

By George Will

Saturday, September 09, 2017

’Congress has been dropping in relative power along a descending curve of 60 years’ duration, with the rate of fall markedly increased since 1933. . . . The fall of the American Congress seems to be correlated with a more general historical transformation toward political and social forms within which the representative assembly — the major political organism of post-Renaissance Western civilization — does not have a primary political function.” – James Burnham, “Congress and the American Tradition” (1959)

Today, worse is better. The president’s manifest and manifold inadequacies might awaken a slumbering Congress to the existence of its Article I powers and responsibilities.

As a candidate, Donald Trump vowed devotion to all twelve of the Constitution’s seven articles. As president, Barack Obama, discerning a defect in the work of the 1787 Constitutional Convention, supplied Article VIII, which has expired. It stipulated: “Between Jan. 20, 2009, and Jan. 20, 2017, the president shall have the power to do whatever Congress declines to do.” So, when Congress did not confer legal status on “Dreamers” (immigrants brought to America illegally as children), he did it. He conferred such status and attendant benefits on a large category of people and called this patently legislative act a routine exercise of law-enforcement discretion.

When Trump was a candidate, his policy regarding Dreamers made up in concision what it lacked in reflection: “They have to go.” As a president whose incoherence has a kind of majesty, he says he has “a love for these people” who are “incredible” when they are not engaged in rampant criminality. When he is not pardoning Arizona’s scofflaw sheriff Joe Arpaio for his anti-immigrant criminality, Trump casts immigration as a law-and-order issue.

So does Attorney General Jeff Sessions, who preaches fire-and-brimstone law and order when he is not encouraging legalized theft under “civil forfeiture,” whereby government enriches itself by seizing the property of persons not convicted of crimes. Sessions, whose canine loyalty to Trump is not scrupulously reciprocated, seemed to relish the privilege of announcing Trump’s policy that, absent action from a Congress that is especially loath to act on immigration, could punish 800,000 children for what their parents did long ago.

Trump’s policy now is to state that Obama’s policy will expire in six months unless Congress chooses to “legalize” — Trump’s word — it. If Congress does not, Trump will do . . .  something: “I will revisit this issue!” Perhaps his exclamatory punctuation foreshadows something as forceful, meaning as unilateral, as what Obama did.

What Obama did was popular and unconstitutional. The latter attribute probably does not interest Obama’s successor, but the former attribute evidently does. Hence Trump has sent this hot-potato issue where it belongs, to Congress, which now faces the unaccustomed agony of actually setting national policy.

The day that Trump and Sessions disturbed Congress’s serenity, Nikki Haley did likewise. The U.S ambassador to the U.N. and a former executive (as South Carolina’s governor) intimated that the 2015 nuclear agreement with Iran might yet wind up where, constitutionally, it should have started — in the national legislature. An international pact of this complexity and gravity should have been a treaty, submitted to the Senate for committee hearings, floor debate, and ratification by a two-thirds supermajority. Instead, as a redundant expression of Obama’s disdain for Congress and the separation of powers, it was submitted to the U.N., and then to Congress. The House voted disapproval and the Senate attempted the same, although the margins were too small to override an Obama veto in any case.

Haley suggested that Trump might declare that Iran is not in compliance with the agreement, thereby initiating a 60-day congressional review, potentially culminating in the administration’s leaving Congress to decide for or against U.S. withdrawal from the agreement. Just as many Republicans, after years of denouncing Obamacare, flinched from repealing it, many critics of the Iran agreement might flinch. Haley said, “I get that Congress doesn’t want this.” Which is a reason — exercising atrophied institutional sinews — for hoping it happens.

In 1959, before the exhilarating experience of Ronald Reagan’s presidency, congressional supremacy was still a tenet of conservatism. Then James Burnham, a founding editor of the then four-year-old National Review, wondered whether Congress could “survive as an autonomous, active political entity with some measure of real power, not merely as a rubber stamp, a name and a ritual, or an echo of powers lodged elsewhere.” The slope of the long-descending curve might be changing.