How Congress Can Reclaim Its Power

By Jay Cost

Monday, February 18, 2019

Donald Trump’s decision to declare an emergency at the southern border with Mexico has many conservatives shaking their heads in disgust. After they warned for eight years about the dangers of Barack Obama taking power that should not be his, here a Republican is doing something similar.

Put aside the matter of whether Trump’s move is technically legal; many conservatives can agree that it should not be and that the best that can be said is that Congress has given too much power to the president. The question then becomes, How to correct this problem?

First things first: Progressives are probably not our allies in this matter. Whenever partisan politics is involved, process disputes are almost always disingenuous. Progressives are unhappy not because the executive’s power has grown, but because a Republican is grabbing power to advance a political goal they do not like. All things equal, progressives tend to support a strong executive and have done a great deal in the last century to advance the case for an ever-expanding sphere of presidential authority.

To be fair, many factions on the right have made similar arguments in favor of a strong executive — both directly as a constitutional theory and indirectly in their effusiveness toward the memory of Ronald Reagan. The point is simply that those of us who consider ourselves constitutional conservatives are basically on our own, without allies on the left, in this matter.

There is a tendency to blame legislative cowardice for the now expansive executive. But I do not think that is quite right, or at least it is an insufficient reason. While the Constitution nominally grants more power to the legislative branch, it established an executive branch that was ready-made to snatch power from the Congress. We have to reckon with this.

In Federalist No. 49, James Madison argued that “we have seen that the tendency of republican governments is to an aggrandizement of the legislative, at the expence of the other departments.” Wise as Madison was, history has proven him wrong on this count. One of his greatest disciples, Henry Clay, was closer to the mark in warning that there is always a threat that “the executive will become a great vortex that must end in swallowing all the rest” of the branches. While Clay’s particular ire was directed at President Andrew Jackson, he believed there was an institutional threat from executive power in general. “The pervading principle of our system of government — of all free government — is not merely the possibility, but the absolute certainty of infidelity and treachery,” by an executive forever on the hunt for more power.

In Federalist No. 70, Alexander Hamilton pointed us to the source of the executive’s unique challenge to the constitutional order — its unity. “Decision, activity, secrecy, and dispatch will generally characterise the proceedings of one man,” all of which leads to an energetic executive. Contrast this with the legislative branch. Though they collectively possess more power than the executive, the multitude of legislators means that they collectively can lack the will to act. This is something that the president never lacks.

This propensity has been amplified by the rise of mass democracy. Who “speaks” for the nation? The proper answer is the Congress. It is only in the legislature that the great variety of views and opinions can even begin to be articulated. But how does Congress speak? In two ways only: first, through legislation that is impossible for the average person to understand; second, through indecipherable cross-talk, as partisans on both sides snipe at one another, leaving people to wonder what Congress is actually saying. On the other hand, the president, as a single person, cannot hope to speak for the vast diversity of this country, but at least he can try. He is a pretend tribune to the nation, but he can nevertheless offer the illusion. The citizenry therefore affixes its gaze first and foremost on the White House, not the Congress, for the solutions to public problems. This reinforces the original effect — making the president more willful and the Congress more fearful.

It would be nice to have more courageous and virtuous legislators in Congress, but such people are always in short supply. And there is only so much they could do in the face of these structural headwinds. Ultimately, it requires an institutional solution.

I think the answer is stronger legislative parties. When Thomas Jefferson and Madison initially reckoned that Hamilton was serious about a vigorous executive looking to seize power from Congress, they worked to create party organizations inside and outside the legislature, which could bind like-minded Republicans together against the Federalist assault. We need something similar today. If we want Congress to be a more assertive entity in our government, then congressional leaders must have the power to induce the majority to speak with one voice, by forcing the rank-and-file into line. That means leaders should have the power to reward loyal members and, more important, the power to punish disloyal ones, above all by denying the most disobedient ones renomination for office. That in turn implies a stronger and better integrated party organization across the entire country — connecting the congressional leadership all the way down to county party organizations.

Put simply, the only way for a Congress of so many members to match a unitary executive is a strong organization that helps the multitude to act as one. The more that the majority party in Congress acts like a real team, the more it will resemble the unity of the executive branch. Otherwise, we will continue to have in Congress what we have right now: a cacophony of disparate voices, a weak institutional will, and easy prey for an ambitious president.