Politics & Policy

The Return of Congressional Government

(Photo: Svetlana Foote/Dreamstime)
If Republican legislators hope to avoid electoral wipeouts in the years to come, they must reclaim the authority they’ve ceded to the executive branch and get to work.

Editor’s Note: The following piece originally appeared at the Library of Law and Liberty. It is reprinted here with permission.

President Trump’s inability or unwillingness to lead on a legislative agenda has been cast as bad news for conservatism. But his weakness may trigger a renaissance of conservatism properly understood.

By renaissance we don’t mean an immediate batch of policy priorities — though congressional Republicans appear likely to pursue such priorities — but a long-term commitment to conserving the constitutional regime. Since James Burnham, constitutionalists have argued that Congress, the first branch of the Founders’ design, is the naturally conservative branch of government.

Republicans now have an opportunity and a responsibility to prove they are up to the task. The imperative here is constitutional, but also political. Reihan Salam, executive editor of National Review, put it well on CBS’s Face the Nation recently when he raised the prospect of a “moral cascade” that the GOP might experience if the Trump presidency continues its train of failures and incompetence.

The cascade effect generally describes an initial stimulus that produces a series of interactions that destabilize and collapse a system or network. The moral cascade that Salam evokes is tantamount to an entire party experiencing not only a failed presidency but the evisceration of its moral capital. That happened when it so firmly tied itself to a president who spoke without clarity in the face of blatant racism and with arrogance and dismissiveness toward those merely unsure of his policies.

Many were rightfully concerned about Trump’s statements during the campaign that impugned certain people’s motives or actions based on their ethnicity or gender. As president, he has only compounded the problem. His press conference after the white-supremacist rally in Charlottesville might prove to have been the triggering event that unwinds not just Trump’s presidency but also much of the conservative universe, which scrambled to reorient itself around Trump in 2016. And now we have

Trump’s pardon of Sheriff Joe Arpaio. We are likely to see heavy GOP losses in the 2018 election, and after that we may well see the coup de grace of unified Democratic government in 2020, with a Democratic president elected from the grievance-mongering left. President Sanders, President Warren, President Harris, anyone?

If the cascade is coming, how does one hedge against a collapse? Begin with the fact that the Trump presidency is weak, unambitious, and unable to exert significant leverage in any of the policy disputes currently taking place in Washington.

To date, two achievements loom largest: the Gorsuch confirmation and the repeal of certain Obama-era regulations. The former depended on a GOP Senate that very much wanted a conservative on the Supreme Court. The latter was accomplished by the executive branch unilaterally pulling or suspending regulations left over from the previous administration, and by Congress legislating under the Congressional Review Act.

In short, the real work hasn’t even started. The prospects of achieving tax reform or any other significant item of the Trump agenda could not be dimmer at this moment.

Congressional Republicans can’t tie their loyalty to this president, not any longer.

Congressional Republicans can’t tie their loyalty to this president, not any longer. If they wish to preserve their majority status, they must retake the reins the Constitution gives them and be the decisive force of politics in our country. They need to announce that their method of governing is in the committee system, where legislation percolates upward through a system of deliberation and bargaining and the floor, where rank-and-file members in both parties are empowered.

President Trump and his antics can amplify this process or seek to undermine it, but what congressional leaders must communicate is that individual members of Congress, in committee, will be shaping the future. On the next priority of tax reform, Congress will fly solo, as the White House recently announced that it will not produce its own tax plan.

Granted, this is easy to say but hard to do, especially given Congress’s lack of intellectual capital and members’ weakness of nerve. They have for decades given their powers over to the executive branch, removing themselves from the real work of republican government and the accountability that comes with it. This has taken various forms, from delegation of policymaking to administrators to abdication of its control over questions of war and peace. This allows members of Congress to offer platitudes without being responsible for the details of governing. It is a transfer of power to technocrats and thus a flight from politics.

There is a way back, however, and necessity forces it upon Congress. The Constitution, which lives because it is written, thus transferring its meaning to each generation, accords these senators and representatives the ability to bring the federal government to a halt if they so choose. That is to say, we have a Constitution written for the legislative branch to govern as first among equals. But do the legislators know it? The issue is less the immediate disputes pending before the Congress than a realignment of the regime for processing them.

The challenge for Congress is to prove that it can survive politically and, more significantly, to establish — on behalf not of a party but of the country — that it can govern constitutionally. That requires reforms that restore the institution’s capacity to take action as an independent branch of government rather than an adjunct of the executive.

It should begin with a restoration of the committee system, which, as Christopher DeMuth notes, was dismantled in the 1970s in the name of democracy and egalitarianism, a move that unilaterally disarmed the legislative branch against an executive whose strength lies in specialization and hierarchy.

Second, Congress should reclaim the regular budget process. Its power of appropriating and authorizing expenditures, and raising and lowering these by the year, is perhaps its single most forceful lever over policy. Publius says in Federalist No. 58 that “this power over the purse may, in fact, be regarded as the most complete and effectual weapon, with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Yet it has largely been surrendered in favor of continuing resolutions.

Similarly, Congress should forgo the use of omnibus bills that legitimate presidential signing statements. It should send the White House individual bills that force the executive to accept or reject specific laws.

Finally, the House should abandon the “Hastert rule,” the informal custom according to which the majority will only pass bills that rely on its votes alone. This discourages bipartisanship while moving all consequential decisions into closed-door conference meetings of the majority party.

The point is not to moderate legislation. It is, rather, to forge a sense of shared institutional interest in loyalty to the branch of government as opposed to reflexive obedience to, or opposition to, the president on a partisan basis.

Congressional government will be messy. So is republicanism. It will not be the rational stuff of Woodrow Wilson’s imaginings. Good. It will be political. It is supposed to be. Most of all, it will disperse power and, in the fullest sense, represent the people. It is what the Framers intended. There is both a window and a necessity for its reclamation.

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