Magazine July 11, 2016, Issue

The Incredible Shirking Congress

(Roman Genn)
Legislators are running from the great duties they were meant to discharge

Washington is broken.

The federal government is a fiscal basket case, $19 trillion in debt and running massive annual deficits as far as the eye can see. It is an abysmal steward of our economy, managing dysfunctional tax and regulatory systems that expand opportunity for the well connected while strangling it for everyone else. And it imposes thousands of petty laws on the American people every year without rhyme or reason, while failing to seriously consider solutions to our real national challenges.

American politics in 2016 seems to be a competition to assign blame for all this. The usual suspects offer up their favorite villains: Democrats and Republicans, conservatives and progressives, insiders and outsiders all accuse one another. But in this case the problem is not partisan or ideological; it’s structural. The reason the federal government isn’t working today is that it isn’t working properly.

The constitutional order set up by our Founders is breaking down. Specifically, the awesome powers of the federal legislative branch are increasingly being exercised by the executive and judicial branches. Executive orders sometimes effectively rewrite laws. Administrative agencies seem to write whole new ones out of thin air. Supreme Court rulings impose the policy preferences of five lawyers onto a republic of 320 million citizens who have no democratic recourse.

Conservatives have been warning about this for years — more than ever during the presidency of Barack Obama. But it seems we don’t take the argument to its logical conclusion. Ultimately, the biggest problem with unchecked executive and judicial activism isn’t the activism; it’s the “unchecked” part. The Founders fully expected federal officers to try to overstep their constitutional authority. That’s why they wrote the Constitution the way they did: first, to disperse political power, horizontally among the three branches and vertically between the federal government and the states; and second, by giving each branch tools to check and balance the others.

Furthermore, while the federal government’s three branches were designed to balance one another, they were not created equal. It’s easy to forget in this era of Olympian judicial supremacy and executive Caesarism, but the constitutional powers vested in Congress in Article I are orders of magnitude stronger than those granted to the president and Supreme Court in Articles II and III. Congress alone is empowered to write laws, levy taxes, spend money, and — if necessary — unilaterally defund the other branches or even remove their leaders from office. By contrast, the powers of the executive and the judiciary are reactive, and their decisions contingent on Congress’s consent.

The Constitution’s assignments of responsibility aren’t superstitious taboos. They’re more like instructions in an engineering manual. The federal government is a machine designed to “run on” congressional direction the way a car runs on gasoline. No other fuel will work. This isn’t because legislators are wiser or better than executives or jurists; it’s because in our system they’re closer and more accountable to the people. The particular work done by the executive and judicial branches benefits from some insulation from the public — and so the Founders granted it. But unaccountable power is inherently dangerous. So the Founders gave the legislative branch overwhelming strength to keep the other two in their lanes, and then — belts and suspenders — subjected legislators to relentless democratic accountability: local constituencies with diverse perspectives and opinions; transparent debate and voting; mechanisms — including the Senate — to require compromise and protect minority views; and, above all, frequent elections. Indeed, even the exclusivity of Congress’s legislative powers was purposely devised to be a lever of accountability. It allowed Americans to isolate the source of policy mistakes.

The Founders wrote the Constitution this way to leave legislators nowhere to hide. In the system they designed, if any part of the federal government was broken, Congress’s fair share of the blame was almost all of it.

Thus Congress had no constitutional choice but to lead: to take great care that legislation reflected the public’s will and that laws were faithfully executed and fairly interpreted by the executive and judicial branches. Otherwise, it would face the pitiless judgment of the voters for failing to do so.

No people ever enjoyed a policymaking process so conducive to their happiness, nor so inconvenient to their politicians.

But therein lie the seeds of our current trouble.

What the Founders did not anticipate was how much Congress’s constitutional supremacy would come to be experienced by actual representatives and senators as a burden rather than a privilege. This may be because James Madison and his co-authors assumed that the limited, enumerated powers they gave the federal government would keep it small (it didn’t work out that way). And when government grows big enough that its mistakes come to overshadow its successes, politicians’ career prospects start to depend less on taking responsibility than on ducking it.

Congress still possesses the institutional power to assert its exclusive authority over federal policy. But actually using this power — especially in our current era of real-time electronic transparency — exposes representatives and senators to the ruthless public accountability embedded in Article I. To members of Congress and party leaders, especially those responsible for defending seats in swing districts and states, the political risks of constitutional governance often just aren’t worth it.

So, rather than subject itself to the Founders’ deliberately uncongenial arrangement, Congress has been quietly improvising a new one, much more to its liking. The pillars of Congress’s power are its core constitutional functions: legislating, budgeting, and conducting oversight. That’s the work representatives and senators get hired to do, and — more to the point — get fired for doing poorly. So the easiest course for Congress is not to do that work well, but to get out of having to do it at all. It’s a three-step process.

Step One: We delegate our legislative power to the executive branch, by making generous use of a law called the Administrative Procedure Act. The APA was written after World War II to create an accountable and transparent way for executive-branch agencies to enforce federal law. Under the APA today, though, Congress mostly allows agencies to write the vast majority of the laws themselves in the form of new rules, regulations, and legal interpretations that carry the force of law. In 2014, for instance, Congress passed and President Obama signed 3,291 pages of new legislation. That same year, executive agencies issued 79,066 pages of new regulations.

Congress has so embraced this “new normal” that major federal legislation rarely constitutes law in any meaningful sense anymore. Rather, Congress passes vague bills that declare gauzy aspirations — say, “clean air” or “high educational standards” — while leaving the specifics to be filled in later by executive agencies. The Clean Air Act, No Child Left Behind, Obamacare, Dodd-Frank: These are not statutes so much as they are homework assignments for the bureaucracy. “Legislating” this way, members can take credit for “doing something” about a problem without being on the hook for the blame when things go sideways, as they inevitably do.

That brings us to Step Two: surrendering our authority over federal spending. In theory, Congress can use its constitutional power of the purse to impose its will on the executive. For the executive branch to act, its agencies need to spend public dollars, and they can do this only with the express permission — indeed, at the express direction — of Congress. But today, the congressional budget process has degenerated into a kind of pantomime. Authorizers and appropriators may (or may not) work out bills over months of committee hearings and markups. But everyone understands that the process will come down to a single “yes”-or-”no” vote — usually up against a crisis deadline — on a massive budget agreement that most members have not been involved in crafting. This process empowers not Congress but the president, who is inevitably better able to deliver a single message in a single voice in that moment of confrontation, and who blames Congress for any failures to agree.

This means that the only alternative Congress leaves itself to effectively turning over the budget process to the president is to shut down federal agencies and stage a cataclysmic confrontation that Congress is never well positioned to win. By working backwards from a calendar deadline, instead of forward from constitutional powers, Congress surrenders most budget fights before they even begin. This too is done with an eye toward members’ convenience.

Conducted properly, the budget process is hard legislative work. It requires hundreds of votes over several months on individual spending priorities, increases, and cuts. And many of those votes — by design — expose unpopular positions that can be used in the next campaign. Now that earmarks have been banned, those bitter votes don’t even come with a spoonful of sugar. And so congressional leaders in both parties now rig the budget process to duck tough votes altogether, criticize dissenters for advocating shutdowns, and hand our constitutional power of the purse over to the president. In that case, without a realistic fear of policy or budgetary correction, there is no reason for the executive branch to respect a legislative branch that won’t stand up for itself.

So, Step Three: Congress delegates its constitutional oversight powers to the judicial branch. In Washington today, your best chance to bring the administrative state to heel is to ignore Congress and just sue the agency in federal court.

Sometimes it’s state governments, sometimes businesses or nonprofits, and sometimes just put-upon citizens who sue. Sometimes these lawsuits succeed and courts invalidate or change executive actions, but they usually don’t — and never without incurring enormous litigation costs. Often the agency doesn’t even have to win in court to win the policy. By the time a court strikes down an offending rule, affected firms may have already reorganized their business models to comply with it. Sometimes Congress itself even sinks to suing the administration. This is kind of like the parents of a finicky child asking the next-door neighbors to come over and make the kid eat: an embarrassing spectacle for all involved.

What all these lawsuits-in-lieu-of-legislation have in common is that they, too, weaken our constitutional order. They empower even more unelected, unaccountable people to do the work that Americans’ representatives can’t be bothered to do themselves.

Taken together, these three steps signal to any president that if there is something he really wants, and is willing to overstep his power to get, Congress’s only substantive response will probably be to increase the relevant agencies’ budgets for next year.

Under the Founders’ design, the American people may or may not get the government they deserve, but they absolutely get the federal government Congress wants. What Congress wants today is to be weak — and we’re all paying the price. The damage already done to our economy by the incredible shrinking Congress is difficult to quantify. Federal regulations are estimated to cost American businesses and consumers between $1 trillion and $2 trillion per year. Corporate and special-interest capture of the administrative state ensures that new regulations benefit incumbent firms at the expense of the younger, smaller startups that create almost all net new jobs. The long-term shortfalls facing our entitlement programs threaten to saddle rising generations of Americans with crippling debt. Meanwhile, federal tax, immigration, welfare, and education policies all conspire against lower- and middle-income families struggling to work their way into economic security.

Yet every year, we refuse even to consider fixing these problems, for fear of the political consequences of hard choices. Some might say that Congress governs more in the interests of its most vulnerable incumbents than those of our most vulnerable citizens. But congressional weakness costs us much more than dollars. The greater loss is to our culture, measured in the distrust, even contempt, that Americans now express toward our public institutions. Despite repeated so-called change elections, the casual abuse and dysfunction that defines modern Washington stays the same. Problems go unsolved. Incompetence seems, if anything, to be rewarded.

The American people may not obsess over the intricacies of administrative rulemaking or appropriations policy riders. But they know they are no longer in charge of their government — that Washington is looking out for itself first; that special interests game the system and jam everyone else; and that the law no longer applies equally to everyone. For a free society, that is a far more frightening danger than any regulation or deficit.

With Congress’s every new abdication, our entire system of government loses a little more of its citizens’ respect, a little more of its moral legitimacy. Whatever the merits of same-sex marriage, Common Core, amnesty for illegal immigrants, forcing Catholic nuns to buy contraception, or requiring high schools to open their girls’ bathrooms to teenage boys, the fact that all of these things recently became federal policy without ever receiving a vote in Congress represents a huge threat to American self-government.

This corruption of our constitutional order may start at the head, but it cannot help but work its way through the rest of the body politic. In an era of ubiquitous media scrutiny, the answer to the question “Who watches the watchmen?” is “Everyone.” And what does everyone see? What lessons of republican citizenship and civic responsibility might Americans take from Congress’s betrayal of the Constitution, and of them? Is it not perfectly rational for them to conclude that Congress is irrelevant? That the rule of law is a con, and separation of powers a sucker’s bet? And that, if we must have a Caesar in the White House, let’s at least make him (or her!) our Caesar?

It seems to me that both major-party presidential candidates this year are making that pitch, with great success. The problem is that history and human nature assure us that there is no such thing as our Caesar. That’s why the Founders made Congress so powerful in the first place: to protect the American people from exactly the kind of arbitrary, unaccountable government-without-consent that Congress now for its own selfish reasons enables the executive branch to practice. Congress is not supposed to be part of a Caesarist system; Congress is supposed to be the people’s protection against it.

The only good news in all this is that what a weak Congress has broken a strong Congress can fix. But only a strong Congress — there is no substitute. There is only the House and Senate, their 535 members, and Congress’s collective will to do its duty to our Constitution and countrymen.

It may be hard to see how we get there from here. After all, for Obama-Clinton Democrats, the centralization of power and the insulation of policymaking from democratic accountability are something like first principles. And in the Republican establishment, congressional supremacy poses a practical catch-22. To many in that camp, picking a constitutional fight with a Democratic president is folly, a kamikaze mission doomed to failure. On the other hand, as the congressional GOP’s docility between 2001 and 2009 showed, resisting a Republican president would be considered even worse — disloyal, extremist, aid and comfort to the Left. This isn’t a strategy; it’s surrender.

Which brings us to 2016.

We don’t yet know who is going to win November’s presidential election. But as far as Congress’s reempowerment goes, it doesn’t matter. Both Donald Trump and Hillary Clinton appear to have expansive notions of presidential power. And both seem to pay little heed to people who tell them what they cannot do. So it is unrealistic to expect a Madisonian restoration of separated powers on Inauguration Day. But that’s okay. Muscles are strengthened by use, not just triumph.

Congress’s powers, while enumerated in the Constitution, are derived from the people. And I believe that if and when Congress starts to reassert itself, the public will start to notice, and we will begin to regain the trust we have squandered for so long. More than that, I think public approval of all federal institutions will improve once Congress starts injecting Washington with more of the constitutional “fuel” on which it’s intended to run. When Article I starts working again, the rest of our constitutional order will, too.

Over the long term, Congress should aspire to fully reclaim its constitutional authority over federal legislating and spending.

First, Congress should reassert its constitutional authority over federal regulations by requiring legislative approval of new major rules and regular reassessments and reauthorizations of existing ones.

Second, Congress should modernize its obsolete budget process to get itself and, more important, the American people out from under the false choice of Caesarism or shutdown. If the budget process designed 40 years ago is not enabling Congress to exercise its will, why remain hostage to it? Why not rethink budgeting for the 21st century; for a modern, diverse, dynamic country; for a Congress without earmarks; for a time that especially requires greater restraint of executive power? Why not make budgeting more like legislating than like executive action, by breaking the process into smaller parts, by combining authorization with appropriation (and so also reducing opportunities for cronyism and corruption), and by compelling the president to come to the table rather than forcing crises that only weaken Congress? The legislative branch writes the rules of the budget process. Those rules now weaken Congress and prevent it from exercising its power of the purse, so it’s time to reform the rules.

And third, Congress should rein in executive discretion. We should direct federal judges, who now defer to executive agencies’ interpretations of laws and regulations, to conduct traditional judicial review in challenges against the administrative state.

These few reforms would not automatically lead to more-conservative federal policy. But they absolutely would reestablish congressional supremacy and oversight, which is the long game we should be playing. In the nearer term, there is much Congress can do to move policy incrementally in the right direction even without a presidential signature: Congressional Republicans can start insisting that bills set policy themselves and not delegate that job to executive-branch bureaucrats. We can encourage our leaders to open up the legislative process and give committees and rank-and-file members time to truly work their will on legislation, especially on appropriations bills. Dispersing power makes as much sense within Congress as without. And most of all, we can start winning back the trust of the American people by trusting them again — with the clarity and consequences of constitutional government. That’s what the Founders had in mind all along, and what conservatives in this era should be fighting for against the decadence of Caesarism in both parties.

Constitutionalism by itself will not cut anyone’s taxes or defund Planned Parenthood or accomplish any other conservative policy goal. But it will restore to the American people the one indispensable policy that makes all our other aims achievable: government by consent. Putting Congress back in charge of federal policy would put the American people back in charge of Washington, regardless of who sits in the Oval Office. Which, in the end, is all a strong and healthy Congress can ever provide to the American people: a republic, if we can keep it.

Mr. Lee, the author of Our Lost Constitution: The Willful Subversion of America’s Founding Document, represents Utah as a Republican in the United States Senate.

Mike Lee is the senior U.S. senator from Utah.

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