Policing the Separation of Powers

By Yuval Levin

Monday, January 11, 2021

 

In the New York Times, Yale’s Bryan Garsten makes a crucial point in the ongoing debate about whether and how Congress should respond to President Trump’s role in the assault on the Capitol last week.

 

There are all kinds of principled and practical considerations to account for in contemplating that response. The president’s behavior plainly deserves to be punished — indeed, it was obviously impeachable. But that doesn’t in itself mean that Trump should be impeached. It’s a prudential question. Members of Congress are right to also consider the potential implications of such action: Would it strengthen or weaken Trump? Might it fan the very flames that reached the Capitol, and undermine the cause of social peace? Would it derail a new administration’s opening days?

 

Yet ultimately, what’s at stake involves more than meting out some form of justice to the president for his shameful actions, and more than calculating the implications of congressional action on the public mood. The basic balance of our constitutional order is at stake here, and Congress cannot afford to do nothing in response to a brazen attack against it by the chief executive. The essential need to police the separation of powers has to figure heavily in the prudential judgments members make now.

 

Among scholars of Congress, there have long been debates about what it would take for the legislative branch to resist and respond to a presidential incursion. But what people had in mind was some kind of regulatory overreach into legislative turf, or an abuse of war powers, or the like. I don’t think anyone imagined that a president literally sending a mob to attack the Congress and keep it from doing its work would go unanswered. And let us hope it doesn’t.

 

As Garsten puts it:

 

The whole country, indeed the world, is watching Congress to see whether it will allow this unprecedented attack incited by the president to go unpunished. If Congress does not utilize the constitutional means of defending itself and deterring future attacks, this moment will come to be regarded by historians as a decisive capitulation, not just to President Trump, but to a dangerous new mode of presidential action. The precedent that a president can stir up mobs to intimidate the other branches will be set, and even if it recedes into the background for a while, eventually that precedent will be followed. We will have taken a large step away from constitutional self-government.

 

This doesn’t necessarily point to one congressional response or another, or to a particular schedule or timeline for acting. But it suggests that merely asking the vice president to initiate a 25th Amendment process is not the right response (and in any case, the 25th Amendment is not intended for or well suited to this situation), and that sooner rather than later the Congress must weigh its own options and act.

 

There have been times in our history when the recovery of our constitutional balance depended most upon a restoration of a proper understanding of presidential power, or of the role of the judge. But today, we are plainly living in a time when the future of American constitutionalism depends upon a recovery of the proper role and functioning of Congress. This has long been clear, and it lays out the task before conservatives who want to preserve the constitutional system. Almost every other problem bedeviling that system — very much including judicial and presidential overreach — results now from congressional under-reach, a willful dereliction rooted in a deformation of the culture of the institution.

 

This moment should make the dangers of such willful weakness especially clear. And it plainly demands action that might begin to put our system of government on the path back toward balance and health. Whatever their party, whatever their views, members of the House and Senate must see that Congress cannot let what happened last week pass without a response.