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.
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