The AWOL Congress

Andrew McCarthy observes that

the Constitution’s mechanisms for reining in or ousting a rogue president are in tatters.

...Among the greatest fears of those who founded our constitutional republic was that the powerful new office they were creating, the President of the United States, could be a path to authoritarianism and eventual tyranny. Much of the deliberation over the drafting and adoption of the new Constitution was dedicated to ensuring adequate safeguards against that possibility.

The Constitution’s aim is to preserve liberty and self-determination. Its prescription for doing so is to constrain government (and thus increase the realm of free, unregulated activity) by limiting and dividing governmental powers. Federal authority was balanced by states that maintained sovereign power. The limited powers delegated to the federal government were divided among three branches, each given sufficient inherent authority that it could not be overwhelmed by the others.

To prevent the president from becoming a monarch, the Framers made Congress supreme over the budget and the enactment of law. With limited inherent authority (albeit significant authority, particularly in the conduct of foreign affairs), the executive would not be permitted to act in the absence of statutory license and funding. Indeed, the president’s primary responsibility is to take care that Congress’s laws are faithfully executed and the Constitution is preserved.

Yet, realizing these grants of legislative power would be insufficient to hem in a determined rogue, the Framers added impeachment – an “indispensable” remedy, as Madison put it. It empowers Congress to remove government officials, up to and including the president, for “high crimes and misdemeanors” – corruption, abuse of power, misleading Congress, collusion with foreign powers against American interests, and other profound violations of the public trust.

...the president can act as a rogue only if Congress allows that to happen.

...If Congress refuses to use its authority to limit or cut off funding, the only remaining limitation is impeachment. If, in addition, Congress takes impeachment off the table, there is nothing left but a rogue president’s subjective sense of what he (or she) can get away with politically. The same, obviously, is true of the president’s subordinates: If, despite their lawlessness or incompetence, Congress maintains (or increases) their budgets and shrinks from impeaching them, then they are limited only by the whims of the rogue president they serve.

This is why our system no longer works. The Congress is AWOL: an increasingly irrelevant institution that: (a) does not see itself (either individually or collectively) as obliged to defend the Constitution; (b) delegates its legislative tasks to the sprawling bureaucracy, over which the president has far more influence; (c) punts tough calls to the judiciary, simultaneously refusing to exploit its constitutional authority over the courts’ jurisdiction in order to prevent or reverse judicial imperialism; and (d) is incompetent to perform basic tasks, such as imposing “regular order” on the appropriations process and compelling presidents to submit international agreements to the Constitution’s treaty process.

We should always be on guard against presentism, but in this instance I do not hesitate to say that the upcoming presidential election is the most alarming in American history. I can make that statement with confidence because I do not believe the most disturbing aspect of the election is the choice of candidates – even though the two major party nominees present the worst choice the American people have faced in my lifetime (Eisenhower was president when I was born), and perhaps ever.

The reason this is such a frightening election is that the Constitution’s mechanisms for reining in or ousting a rogue president are in tatters.

We are not supposed to have transformative elections, contests that will forever change our system of government or enable government to orchestrate cultural upheaval. The Constitution is supposed to be our guarantee against that.

A couple of years ago, I wrote a book called Faithless Execution in an attempt to explain this and campaign, in my own small way, for a restoration. The theory I posited was straightforward. Among the greatest fears of those who founded our constitutional republic was that the powerful new office they were creating, the President of the United States, could be a path to authoritarianism and eventual tyranny. Much of the deliberation over the drafting and adoption of the new Constitution was dedicated to ensuring adequate safeguards against that possibility.

The Constitution’s aim is to preserve liberty and self-determination. Its prescription for doing so is to constrain government (and thus increase the realm of free, unregulated activity) by limiting and dividing governmental powers. Federal authority was balanced by states that maintained sovereign power. The limited powers delegated to the federal government were divided among three branches, each given sufficient inherent authority that it could not be overwhelmed by the others.

To prevent the president from becoming a monarch, the Framers made Congress supreme over the budget and the enactment of law. With limited inherent authority (albeit significant authority, particularly in the conduct of foreign affairs), the executive would not be permitted to act in the absence of statutory license and funding. Indeed, the president’s primary responsibility is to take care that Congress’s laws are faithfully executed and the Constitution is preserved.

Yet, realizing these grants of legislative power would be insufficient to hem in a determined rogue, the Framers added impeachment – an “indispensable” remedy, as Madison put it. It empowers Congress to remove government officials, up to and including the president, for “high crimes and misdemeanors” – corruption, abuse of power, misleading Congress, collusion with foreign powers against American interests, and other profound violations of the public trust.

Thus, besides the ballot box, the most vital limitations on presidential power are Congress’s powers to control spending and impeach. These were thought sufficiently strong checks that, for over 160 years, the president was not even term-limited (i.e., until the 22nd Amendment in 1951). This confidence owed to the principle that members of Congress had a solemn duty to defend their institutional authority and the constitutional framework. In essence, the president can act as a rogue only if Congress allows that to happen.

As I argued in Faithless Execution, while Congress’s powers to thwart abuse of presidential power are dispositive, there are, really, only two of them. If Congress refuses to use its authority to limit or cut off funding, the only remaining limitation is impeachment. If, in addition, Congress takes impeachment off the table, there is nothing left but a rogue president’s subjective sense of what he (or she) can get away with politically. The same, obviously, is true of the president’s subordinates: If, despite their lawlessness or incompetence, Congress maintains (or increases) their budgets and shrinks from impeaching them, then they are limited only by the whims of the rogue president they serve.

This is why our system no longer works. The Congress is AWOL: an increasingly irrelevant institution that: (a) does not see itself (either individually or collectively) as obliged to defend the Constitution; (b) delegates its legislative tasks to the sprawling bureaucracy, over which the president has far more influence; (c) punts tough calls to the judiciary, simultaneously refusing to exploit its constitutional authority over the courts’ jurisdiction in order to prevent or reverse judicial imperialism; and (d) is incompetent to perform basic tasks, such as imposing “regular order” on the appropriations process and compelling presidents to submit international agreements to the Constitution’s treaty process.

The power of the purse is now a toothless check. In the last century, the federal government’s most basic role has been transitioned from national security to social welfare, wealth redistribution, and economic regulation (including transfer payments to industries and research institutions based on political favoritism, not market forces). Congress is paralyzed by fear that any cutting off of funds will be portrayed as a denial of someone’s entitlement or other transfer payments.

Furthermore, with the appropriations process having collapsed, the government operates under huge “omnibus” spending acts and “continuing resolutions.” This transforms budget battles into ludicrously high-stakes affairs, in which attempts to force government to live within its means – means that are far greater than they have ever been – become shutdown showdowns. This itself is an extension of another dysfunction: Congress no longer reads the laws it writes, or even perceives that dereliction as a dereliction. Single $4 trillion budget resolutions of hundreds of inscrutable pages that no one could conceivably read are now standard fare. Lots of critical legislation is now that way.

...Since the start of the Bush 43 administration, the federal deficit has exploded from about $5 trillion to about $20 trillion (doubled under Bush, then that inflated amount doubled again under Obama). During the majority of those 16 years, Republicans controlled one or both houses of Congress.

But then they win … and they agree to pay for everything they campaigned against – Obamacare, immigration lawlessness, a Justice Department that practices racial discrimination in law-enforcement while using extortionate lawsuits to federalize the nation’s police, an IRS used as a weapon against conservative activists, an EPA decreeing economy-strangling regulations Congress has refused to enact, and so on. Moreover, they pass sleight-of-hand legislation to duck confrontations with Obama on the debt ceiling and the Iran deal – pieces of theater designed to dismantle the Constitution’s brakes but to allow them to pose as opposing that which their legislation actually enables.

...Democrats do not tell their supporters, “The president has veto power and Republicans have the numbers to block us, so don’t expect us to accomplish anything.” Democrats know you move public opinion by fighting, even if you lose battles along the way. A movement has to move. And since they and the mainstream media are part of the same movement, they do not doubt their ability ultimately to turn public opinion in their favor.

...That is why the 2016 election is so harrowing. It is not just that the candidates are awful yet one of them will become president. It is that our political class has eviscerated the constitutional weapons that protect us from an awful president. Thus, what the Framers most feared is coming to pass.

Read more here.

Update: Bookworm adds,

Trump won’t go begging for Congress to resume its responsibilities. Congress simply will. Between a GOP that hates him and a Democrat party that hates him more, he will be completely cabin’d, crib’d, confin’d and bound. Hillary will not. Nothing will change Congress’s laziness, and Republicans will be just as cowed by cries of “misogynist” as they were by cries of “racist.” Hillary’s election would put the seal on the imperial presidency.