Regular readers of mine (and listeners to my podcast with Luke Thompson, Constitutionally Speaking) will know that I am an “Article I” kind of guy. I like Congress, or at least I like the idea of Congress. I think “co-equal branches” is a myth. I think the true backbone of republican government is Congress, not the president and certainly not the courts.
So, it should come as no shock then that I found myself largely in agreement with Yuval Levin’s recent op-ed for the New York Times, on the need for Congress to reclaim some of its lost authority:
Our constitutional system cannot function this way. To repair it, Congress will have to reclaim its place. This certainly means taking oversight seriously, and the assorted misbehaviors of the Trump administration must surely be on the agenda. But it is crucial that the reassertion of congressional power be at its core a reassertion of legislative power, not just of oversight. Fighting the president is not what Congress is for. And the fact that Congress has forgotten what it is for is bad news for our constitutional system.
So here’s a bit of a shocker: I partially disagree with Yuval as well. The sad fact of the matter is that, organizationally speaking, Congress is a disgrace. Without substantial reforms of congressional practice, the headline of Yuval’s piece, “What if Congress, Not Trump, Were In Charge?” would probably be answered, “Things would be a lot worse.” Before Congress reclaims its power, it has to acquire the ability to behave responsibly, on behalf of the general welfare of the United States. Unless that happens, I will oppose expansions of legislative authority, much as I wish I did not have to.
I have a series of essays that I have been working on for the American Enterprise Institute that deal in more depth with this subject. For now, I’ll just offer a digest of my opinions.
It was not always like this. Congress used to be the dominant player in American public policy. Before the rise of the regulatory state, before the emergence of the “imperial presidency,” there was Congress. Study politics during the Gilded Age, and you will inevitably see the most important people in the country rarely lived at 1600 Pennsylvania Avenue. They either were captains of industry or the titans of Congress. James G. Blaine, Tom Reed, Joseph Cannon, Nelson Aldrich. These were men to be reckoned with.
Why did Congress lose its power? Let’s be a little more precise with the question. It did not technically lose its power, of course. It’s still sitting right there in Article I, Section 8. Congress instead lost the will to exercise it. Why is that the case? I think we have to answer that question before we start calling for an increase in congressional authority, and Yuval’s response does not entirely satisfy:
Whether driven by partisanship, misguided by perverse media and political incentives, or simply put off by the burdens of responsibility, members of both houses are now reluctant to really legislate.
No doubt, he is onto something here. The problem with this explanation is that, while it may explain recent history, it does not account for the long-term trend of congressional abdication, an ongoing process of 100 years and counting. It transcends media, political, and partisan eras. So, to build a theory, we have to look at history with a little more granularity.
The answer, as with many things regarding Congress, can be found by looking first at the people. Congress, for better or worse, represents the people. It may be a perverted picture in some respects (or it may be an accurate picture that we wish were perverted!), but it is still representative. Elections guarantee that.
Beginning around the time of the Progressive Era, more or less continuing up to this day, the people have demanded that Congress grant more and more deference to the executive branch. They have rarely equivocated in this demand. Maybe that is not what the people intended, but it has been the resounding effect of their votes.
Look at the big shifts in congressional–executive relationships. These mainly happen during the 60th and 61st Congress (1913–1917); the 73rd, 74th, and 75th Congresses (1933–1939); the 80th Congress (1947–49); and the 89th Congress (1965–67). There were smaller expansions and contractions here and there (e.g. the 111th Congress, which passed Obamacare), but these seven Congresses really established the framework for modern executive–legislative relationships.
In five of these Congresses (61st, 73rd, 74th, 75th, and 89th), there was a shift toward greater executive power. In one of them (80th), there was a successful effort to scale back the administrative state. In the next election, the people always responded by voting for the party calling for greater executive power. Admittedly, the majority party’s margin was sometimes diminished, preventing it from enacting new reforms. But the opposition never acquired a strong enough majority to undo what its predecessor had done.
Public opinion is not terribly well formed, and it is easy to overinterpret. But in general it is fair to say that the people have been more likely to support cuts to congressional power than to support expansions — and for good reasons. As a dyed-in-the-wool republican, I do not like the idea of being governed by an imperial president and his army of unelected bureaucrats. But by the middle of the 20th century, congressional governance had become such an intolerable blend of incompetence and corruption that the “imperial presidency” was arguably . . . better.
This problem has its origins in the constitutional structure of the legislature. While Congress represents the country, it is wrong to say that it necessarily represents the national interest. There are, after all, no members who count as their constituency the entire country. Rather, Congress is the meeting place of representatives from 535 diverse constituencies, each of whom has an electoral incentive to place the good of his constituents before that of the whole country.
Now, to be fair, many members do not act in such a low manner. Some of them possess the civic virtue requisite to vote against the wishes of their constituents in pursuit of their interests, rightly understood. The problem is that the average member is unlikely to be possessed of such high motives, which means that Congress represents not the national interest but some weighted average of all the local constituencies within the chamber. These are two different things, and Congress as a chamber has been inclined to deal with national problems as the sum of local problems — which leads to all sorts of unintended consequences: corruption, inefficiency, overreaction, underreaction, etc.
Consider the period between the Civil War and the Progressive movement. This is an important test case for the responsible use of legislative power, because here we see Congress directly engaging with a complex, industrialized economy and diverse citizenry — but largely before the administrative state matures. These were the salad days of congressional supremacy, and the results are extremely disappointing. There are some notable exceptions, but it is hard to look at any policy domain during this period and not see Congress seriously misbehave at some point or another. Railroad expansion. Industrial regulation. Civil War pensions. Maintenance of the currency. Civil rights. It’s a long list of failures.
Ironically, no policy domain better illustrates this problem than the one that now has people calling for greater congressional power — the tariff authority.
From 1816 to 1933, the United States engaged in a basically uninterrupted project of industrial protection, largely directed by Congress. While there were some national benefits at various points to this regime, it was on balance a negative experience for the country. And this is not merely the judgment of historians, but that of contemporary political players all throughout the eras. Peruse the various party platforms, and you will see both sides regularly call for “tariff reform.” Why? Because Congress made a total hash of it.
The waterloo arrived in 1930, with the Smoot-Hawley tariff. As so many previous protective measures did, this one started as a misguided but benignly intentioned effort to prop up the economy in the face of the Great Depression. But (as so many previous protective measures did!), it devolved into a massive logroll that was malignant to the national interest. Against his better judgment, President Herbert Hoover signed the tariff of 1930 into law.
Smoot-Hawley worsened the Depression, led to the election of Franklin Roosevelt, and, more important, brought about an inadvertent shift in congressional–executive relations. Subsequent Congresses handed the tariff power to the president in large part because they knew that Congress could not exercise it responsibly, and that irresponsibility could lead to economic calamity and eventually electoral defeat. So the free-trade regime that has existed more or less since the 1930s is based on the idea that the president should keep Congress at bay.
I could offer many more examples. Instead, I’ll summarize by restating my main contentions: Congress is not currently equipped to handle national problems in a responsible manner; this is not a problem of ethics or civic virtue, but rather legislative organization; congressional incompetence tends to result in inefficiency, graft, and generally bad legislation; the public, at least dimly aware of this, has responded by empowering the president — who, by his very nature as the unitary agent of his branch, can theoretically act with a coherent national purpose that Congress so often lacks.
Giving Congress more power right now would be like allowing a ten-year-old to drive your father’s Ferrari. The boy just can’t handle it and will assuredly wreck your dad’s 660 HP testament to Italian engineering.
Before we start giving Congress more power, we have to beef up its capacities to handle its tasks responsibly. I’ll address some of these on Monday.