I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought…
Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.–Supreme Court Justice Antonin Scalia (1936-2016) in an October 2013 interview with New York magazine
Having seen Washington for decades and having served in both the Judicial Branch and Executive Branch (under Presidents Richard Nixon and Gerald Ford), Justice Scalia keenly understood Congress’ potential.
Congress certainly is not living up to its potential today. If Congress is “the 900-pound gorilla in Washington,” it sleeps—and should wake up.
It is often observed that the Federal Government is made up of three co-equal branches sharing power: The Legislative, the Executive, and the Judicial. That, however, is a rather idealized and theoretical understanding of the government, and as the branches frequently compete for power, their actual strength relative to each other varies from time to time.
The Constitution assigns each branch specific powers, and Congress may never take away those that belong to the President. But to a large degree, the Presidency and the Executive Branch are what Congress makes of them. Members of Congress pay lip service to the idea that the Legislative Branch of the Federal Government is preeminent among the three since it is most representative of the people. The House of Representatives was the only directly elected part of the Federal Government when the Constitution was ratified, and the Senate became directly elected in 1913, whereas the President is still elected by the Electoral College. In reality, Congress has too often abdicated its responsibilities, thereby allowing the Executive Branch to directly or indirectly control policy where the Legislative Branch could or even must.
The growth of the Executive Branch is a massive topic, and we’ll sketch out various relevant themes in future essays. The first place to start is why Members of Congress should be keen to strengthen their institutional prerogatives, which overlaps with and mirrors the reasons why the wider public should care too.
To frame this discussion, let’s start by considering a brief passage from Federalist 52, which was written either by James Madison or Alexander Hamilton:
As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration [the House of Representatives] should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.—Federalist 52
If “a common interest with the people” is “essential to liberty,” and if elections—a mechanism for guaranteeing accountability—secure this, there is no doubt that Congress should retain its control over national policy and not abdicate its responsibilities to the Executive Branch. Having a “common interest with the people” and “an immediate dependence on, and an intimate sympathy” relates to Members’ roles of understanding what the public wants and bringing their constituents’ ideas to Washington. Congress can provide this like virtually no other part of the government. Moreover, the frequent elections referred to here are symbolic of allowing the people to hold the government accountable, and again, Congress is in a far better position to provide accountability to the public than the Executive Branch. Because of both its superior capacity for representation and public accountability, Congress must fight back against its unfortunate tendency to aggrandize the Executive.
How Congress Empowers the Executive: A Passing Glance
Somewhat paradoxically, Congress empowers the Executive Branch both when it legislates and when it does not. Congress directly empowers the Executive Branch when it provides overly broad discretion in administering the laws it passes. As a testament to Congress’ propensity to provide such leeway, consider that in 2019, Supreme Court Justice Elena Kagan, writing the majority opinion in Gundy v. United States, noted that the Court had “over and over upheld even very broad delegations” to the Executive Branch.
Congress tempts the Executive Branch to take powers that do not belong to it when it fails to pass badly needed legislation. For instance, in 2014, President Barack Obama said that he would use the various Executive actions at his disposal to advance his priorities. “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” he famously declared. In the words of one New York Times article, Obama “sought to reshape the nation with a sweeping assertion of executive authority and a canon of regulations that have inserted the United States government more deeply into American life.”
You might also say that, with the Patient Protection and Affordable Care Act (colloquially called Obamacare), President Obama inserted himself more deeply into the legislative process than previous chief executives. Passing Obamacare was difficult enough, and then the Administration found a new batch of challenges when trying to implement it. Two actions they took were particularly controversial. First, the law required businesses with more than 50 employees to provide healthcare insurance to their workers beginning on January 1, 2014, and this mandate both delayed and modified at different times. Additionally, the Administration paid subsidies to health insurance companies. Neither action might seem controversial, but the in July 2014, the House of Representatives, controlled by the Republicans, voted to sue the Administration. They alleged that the change in the employer’s mandate was effectively an amendment to the law and that the subsidies were made without an appropriation, both of which would be violations of the House’s constitutional prerogatives. Judge Rosemary Collyer of the U.S. District Court for the District of Columbia ruled that the House had no standing to sue regarding the delay of the employer mandate but did have standing on its claims about the subsidy payments. She eventually ruled that, despite the Administration’s claims, there was no appropriation for the payments, so the subsidies were unconstitutional.
Of course, the Administration appealed Collyer’s decision. The case continued through the end of Obama’s term. When President Donald Trump was inaugurated, his Administration continued the appeal. However, the Trump Administration and the still-Republican House negotiated a settlement on the grounds that developments made the need for continuing the case unnecessary, but neither the Executive Branch nor the Legislative Branch retreated from their respective positions. Although the House enjoyed some success defending its prerogatives in the initial stages of this case, their settlement left open the possibility that a future Administration will try the same tactic Obama’s did.
The way the House’s lawsuit ended points to an important element of the growth of the Executive power: It is a thoroughly bipartisan thing. When President Trump came to office, liberals found themselves outraged at certain Executive actions he took, even if they cheered his predecessor’s actions. For instance, when President Trump issued an emergency declaration to justify spending money to build a wall at the U.S.-Mexican border, his signature campaign promise, the Democratic-controlled House promptly filed a lawsuit against the Administration.
President Trump also used Executive actions in ways that upended traditional Republican positions. For instance, consider the example of the Trade Expansion Act of 1962. According to the Act’s statement of purpose (section 102), part of the reason Congress enacted it was “to strengthen economic relations with foreign countries…in the free world.” Section 232 permits the President to impose tariffs if he determines it is in the country’s national security interests. Yet, in May 2018, the President cited this section as the authority for imposing tariffs on steel and aluminum from the European Union (EU), Canada and Mexico. Canada and many EU states are members of the North Atlantic Treaty Organization (NATO), a critical source of American military support. The affected nations responded with retaliatory tariffs. Imposing such tariffs on allies was unprecedented: According to the Senate Finance Committee, prior to President Trump’s tariffs, only Iran and Libya—generally recognized as national security threats—were subject to them. So much for the Trade Expansion Act’s stated purpose of promoting trade among the nations of the free world.
In failing to legislate and in giving the Executive Branch wide discretion, Congress has, unfortunately, been complicit in empowering the Executive Branch.
Some of these Executive Orders may even be very popular with the public. But that is just the problem. Popular or not, it is not the President’s constitutional role to make laws. Instead he or she should “faithfully execute” the laws Congress passes.
Public Expectations of Congressional Leadership
Americans, it seems, are perennially suspicious of the government. At the Constitutional Convention, the Framers created a republic, but the opponents of the Constitution were strong enough to hold up ratification until they were assured that they would have the opportunity to add a Bill of Rights prohibiting the government from taking various actions (such as limiting free speech or the right to petition).
Today, the public remains dubious about the quality of their representation, even when their party is in control.
In a 2016 study that the Congressional Institute commissioned, only 19 percent of respondents said that the government heard their voices effectively, whereas 79 percent said the government did not. Following the 2016 presidential election, more people, 29 percent said they felt the government heard them, but a strong majority (58 percent) still said it did not. Not surprisingly, following the election of President Trump, the share of Republicans who said that they felt heard increased from 15 percent to 42 percent. Even with the big jump in “feeling heard,” 49 percent of Republicans disagreed and said they were not. Americans doubt that DC listens to them.
Though many Americans feel Washington ignores them, they are also clear on Congress’ role in the Federal Government. One of the most important findings of the Congressional Institute’s post-2016 election study was that 47 percent of respondents said that Members of Congress were most responsible for representing their constituents. By comparison, 27 percent of respondents said that they themselves were most responsible for advocating their own interests and a mere 11 percent said the President was. In other words, Americans take the job description “elected representative” very seriously.
In a focus group for the 2016 Congressional Institute study, one middle-income voter from Pittsburgh fleshed out her expectations for Congress as compared to the President:
[The President] is not going anywhere without Congress. Congress runs the country. He’s just the administrator, so to speak. Without Congress, nothing is going to change.–“What Working and Middle Income Voters Want from their Government“
When this voter says that the President “is not going anywhere without Congress” and that “nothing is going to change” without Congress, she understands the Legislative Branch is essential for the nation. However, different parts of an entity may be essential in different ways. Here, Congress is essential in a very particular way: It “runs the country.” In other words, Congress, not the Executive Branch, superintends and directs the course of the nation. By contrast, the President is “the administrator”—and “just” the administrator, at that—conjuring someone who is at the service of Congress rather than an independent actor. It is true that this is the opinion of one voter in one focus group; at the same time, however, it seems large numbers of people share the sentiment. About 40 percent said that Congress has the “largest role in determining the scale of changes that can be made in the country,” whereas only 25 percent said the President has the “largest role.”
Constituents are sending Congress a clear message: You need to lead.
Who’s Got Your Constituents’ Backs?
Constituents expect that Members of Congress will listen to them so they can represent them effectively. If a Member is diligent in carrying out this function of their office, it means that they possess unique and unparalleled insights into their communities. This specialized knowledge is no doubt another reason that Congress needs to maintain its control over public policy.
When it comes to distributing public goods, Members of Congress can either provide the Executive Branch officials substantial discretion in allotting resources, or they can flesh out the details themselves. If the legitimate needs of communities across the country are to be considered in making these decisions, there can be little doubt that Members of Congress will have a better idea than Executive Branch officials.
Members of Congress know their constituents far better than anyone else in Washington. Even prior to election, most Members of Congress have extensive knowledge of their districts and states. Many have prior service as congressional staffers and a chief of staff or state/district director will succeed the Member they had previously served. Others come to office via their political party’s network and have extensive connections that way. Still others have been influential in their communities, whether serving as doctors, businesspeople, lawyers and even ordained ministers; such positions have afforded them unique experience coming to know the towns and cities they represent. Then they receive an additional education as they hit the campaign trail and try to woo their would-be constituents.
While in office, Members must be all the more acquainted with the needs of their constituencies. Of course, many constituents are hardly reticent, and each office receives thousands upon thousands of communications each year in the form of letters, emails, phone calls and now social media messages. Plus, the Members rarely stay in Washington over the weekend so they can spend as much time as possible in their states and districts. (This weekly flight from Washington is frequently cited as a reason Congress is so dysfunctional. The reasoning goes that Members are not in town enough to form strong relationships with other Members and therefore the institution lacks the social capital to work.) Likewise, Congress has regular recesses so Members can spend extended periods meeting with constituents back home. All this activity amounts to an intimate education in the needs of the state or district that they represent.
And of course, all political scientists will tell you that the predominant, if not exclusive, motivation of Members of Congress is the desire to be reelected. It’s hard to get reelected if a Member ignores or flouts the needs and desires of their constituents.
Civil servants working in the Executive Branch no doubt care about the public no less than Members of Congress and congressional staffers. No doubt many are also incredibly talented, and some have served the public in the Legislative Branch, even as Members of Congress. For instance, three of the last four Secretaries of State have been Members: Mike Pompeo, John Kerry, and Hillary Clinton. Yet there can be little doubt that the average Executive Branch official lacks the depth of knowledge that an average Member has about communities outside the Beltway.
Petitioning for a Redress of Grievances
Just as it is harder for the public to hold the Executive Branch directly accountable, it is also harder for the public to effectively “petition the Government for a redress of grievances” as the First Amendment to the Constitution so eloquently puts it. This is true in part because of sheer numbers. The Executive Branch must respond to the needs of each of the nearly 330 million people living in the United States. By contrast, each Senator must respond to the needs of each resident of his or her state alone. At one extreme, the Senators of the most populous state, California, represent 39.5 million; at the other, the Senators of the least populous state, Wyoming, represent fewer than 600,000 people (per figures from the U.S. Census Bureau). On average, each House district has approximately 753,000 residents, meaning each state’s Representatives (except those from the single-district states) have far fewer constituents than its Senators.
On a practical level, it is also easier and simpler for a private individual to lobby his or her Member of Congress. If a person would like to petition the Executive Branch, they can directly contact the White House, where their communication will be considered, along with all the others, and there are many, many others. During President Barack Obama’s administration, each day, the White House reportedly received about 10,000 communications from the public—literally, a myriad. His Office of Presidential Correspondence boasted 50 employees, almost 40 interns, and about 300 volunteers. Most Members of the House would laugh in disbelief at the thought of having 50 paid employees in total, let alone dedicated just for correspondence. (House Members are permitted at most 18 full-time staffers though the average is actually 16.) In addition to, or in lieu of, contacting the White House, an American could also reach out to a Federal department or agency directly. This requires that a person actually know the most effective way to navigate the bureaucracy, which can be a daunting task, as evidenced by the fact that Members of Congress each have a number of staffers solely dedicated to helping constituents with this endeavor. By contrast, constituents can simply call or email the office of their Member of Congress to share their concern, and the staff will respond accordingly. Not to mention, Members of Congress have a clear interest in meeting with their constituents both in Washington and in their states and districts, meaning the public likely has a greater chance of an in-person interaction with them, rather than an Executive Branch official, especially one high in the chain of command.
Any determined constituent can meet their Member of Congress in person, either by appointment, following a speech at a local event, or simply walking up to them at the local Memorial Day parade. The overwhelming majority of Americans will never get to meet the President in person.
Petitioning for a redress of grievances is one way that the public holds the government accountable. Public accountability is essential for a healthy, representative democracy. In general, it is much easier to hold an elected representative accountable. Members of the House may be held accountable most easily: The entire House stands for election every two years. Additionally, a person’s vote is a larger share of their District’s electorate since, with the exception of single-district states like Wyoming, each state is divided into multiple smaller constituencies. It is somewhat more difficult to assess whether it is easier for a person to hold the President or their U.S. Senator accountable. On the one hand, the Presidents stand for election more frequently than Senators. On the other hand, a person’s vote for President may be more or less consequential depending on where they live. For instance, a vote for the Republican candidate in liberal Massachusetts is less likely to affect the outcome of the race than a Republican vote in a swing state like Florida or Ohio.
Aside from the President and Vice President, Executive Branch officials are, at best, indirectly accountable to the public (e.g., when a President loses reelection, the Cabinet is replaced, or if an official becomes so unpopular, the President may demand their resignation). Lower-level Executive Branch officials, whether they are political appointees or career civil servants, are not accountable to the wider public in any direct and meaningful way (though, to be fair, they are still accountable to their managers and are bound by ethics laws, even though civil service rules and Federal employee unions make it very difficult to terminate a poor bureaucrat).
By contrast, constituents can hold their Members of Congress accountable directly at the ballot box, Representatives every two years, and Senators every six. As much as congressional observers do point out the high reelection rates for Congress, voters do hold Members accountable. Both parties, while in the majority, have had to face the wrath of voters. For instance, consider how the House majority, whether they are Republicans or Democrats, have faced raucous town hall meetings where the public—sometimes organized political groups to be sure—have voiced outrage over the legislative agenda. Anger during the August recess has also translated to incumbent losses the following fall. In 2018, Democrats claimed over 40 House Republican seats, which included the defeat of almost 30 incumbents. Even more impressive was the Republican gain of 63 seats in the 2010 House elections, which saw the defeat of over 50 incumbents.
The defeated incumbents hopefully learned a new “dependence on, and an intimate sympathy with, the people,” to borrow from Federalist 52.
If Congress is going to bear the brunt of public disfavor, why not call the shots in Washington?
A Sleeping Gorilla
The ability for the public to hold Members accountable—which generates a “dependence” on the people—is precisely the reason Congress should be the preeminent branch in the Federal Government. Likewise, Congress’ proximity to the people, which affords its Members a deep knowledge and “intimate sympathy” with constituents justifies its claim to direct national policy.
The American people expect real leadership from Congress. Congress can supply this leadership, since the Legislative Branch has the real power, as Supreme Court Justice Antonin Scalia noted, “if it can ever get its act together.”
Yet in so many areas, the President seems to reign supreme.
Can Congress get its act together?