It’s Time for Congress to Reassert Its Authority
How Chaos and Disorder in the Trump Administration Offer Congress an Opportunity to Reclaim Power and Reverse a Decades Long Erosion of Authority
In 2001, Elena Kagan, then a visiting professor at Harvard Law School and fresh off an extended tenure in the Clinton administration, authored one of the most cited law review articles of all time. As a work of legal scholarship, Professor Kagan’s Presidential Administration is a lengthy discourse regarding America’s vast administrative state that benefits from her experience in the trenches of a presidential administration, and in particular, one mired in a multiplicity of legal battles. But its distinguishing feature (aside from the fact that its author now sits on the highest court in the land) is that Professor Kagan tacitly accepts, if not fully embraces, a broad theory of presidential power. As she explains it, “at different times, one or another [branch of the federal government] has come to the fore and asserted at least a comparative primacy in setting the direction and influencing the outcome of administrative process. In this time, that institution is the Presidency. We live today in an era of presidential administration.” Kagan implicitly concedes that power is a zero sum game; one branch of government can only amass it at the expense of the other two.
Kagan’s views on the subject were informed by successive presidential administrations — both Republican and Democrat — that gradually consolidated executive power by exploiting the rulemaking capabilities of administrative agencies, nominating ideologically aligned agency heads, driving policy through executive orders (and presidential signing statements), and taking a more expansive view of the President’s traditional role in foreign policy, immigration and commander-in-chief. This expansion of authority, which culminated with President Obama, has provoked critics on both the right and the left, many of whom contend that an unconstrained executive undermines democracy and erodes Congress’ Article One responsibility to enact legislation that adheres to the will of the people.
The legislative and the judicial branches have both been complicit in the executive’s power grab. The rise of political partisanship has hamstrung Congress’ ability to intervene in matters of executive overreach. Moreover, the Republican Party’s laissez faire approach to governance, and its efforts to sabotage Democratic legislative objectives, have de facto placed more control in the hands of the executive branch, which has correspondingly recognized that the day-to-day of governance must continue, irrespective of whether Congress passes legislation. As President Obama’s unilateral actions on DACA showed, when Congress fails to act, presidents are emboldened to push through their policy agenda through alternative means.
Similarly, except for the most egregious cases, the federal courts have been reluctant to curb executive action, allowing presidential administrations to drive their policy agenda without the checks and balances that Congress ought to provide.
Against this backdrop, a presidential administration that is weakened by scandal, chaos and disorder, offers an opportunity for Congress to rein in the executive. In that sense, both President Trump (who, among other things, feels besieged by the ongoing pressure of the Russia investigation) and many of his key appointees and advisors (who are roiled by scandals large and small), are a gift to Congress that keeps on giving. The administration’s often ham-handed and hopelessly incompetent attempts at implementing his policy agenda (either because of rash and poorly executed actions, or because of the president’s intemperate comments) invite judicial challenges and congressional oversight. For the first time in a long time, the political climate favors a rebalancing of power.
Unfortunately, a full two years into Trump’s term, Congress has squandered this opportunity because the majority in both houses were ideologically aligned with the President, and many hoped that despite Trump’s many failings, he would enact a deregulatory agenda. Moreover, many Republicans who privately disparaged the president feared the political blowback of criticizing him publicly. That, and the fact that Republican insiders have known for some time that it is less damaging to not legislate than to pursue a politically unpopular legislative agenda, has resulted in a sort of entrenchment by GOP leaders who would rather pass their time on the sidelines than take heavy losses.
But November 5th changed all this. The incoming Congress, and in particular, the new Democratic majority in the House, will have an opportunity to take advantage of a White House in disarray. While many foresee a wave of investigations focusing on the administration’s conspicuous graft, the country will be better served in the long term if the House begins the process of unwinding much of the presidential power grab of the past four decades. This means, above all else, wresting control of Congress’ Article One power, including the exclusive right to declare war, the power of the purse, and the power to limit an administrative agency’s rulemaking capabilities — thereby retaking ownership of governmental policy.
Take, for example, the question of whether the EPA may unilaterally set emissions standards for new vehicles. As currently written, the Clean Air Act, which was last amended in 1990, authorizes the EPA to regulate engine emissions through administrative rulemaking, an arcane and multi-level process unknown to most Americans. As a matter of practice, however, whether the EPA decides to strengthen existing emissions standards is largely a function of the ideological leanings of the presidential administration then in office. But it need not be (nor should it be) this way. Congress retains the power to pass legislation on nearly all regulatory matters, and on politically significant issues — like setting emissions standards — it should not defer to federal agencies. Rather, various stakeholders, including experts and career professionals inside those agencies, should be active participants in a more transparent legislative process that is managed in the halls of Congress. In this way, elected politicians are empowered to drive a policy agenda (and to take ownership of that policy), and ordinary citizens are more engaged and invested in the political process.
There are, of course, a number of hurdles to overcome, not least of which, that Democrats will only control one of the two houses of Congress, and it would be naive to believe that Senate Republicans (or the president) would cooperate with a progressive agenda. But passing a legislative agenda is only one of Congress’ functions. The House and Senate can work together to pass a myriad of procedural hurdles that constrain both this president and future ones, and when in agreement, the two houses can pass legislation to limit this administration’s prerogatives like selling weapons to Saudi Arabia, or even pulling troops out of Syria, where ISIS strongholds remain.
The full scale of the damage that Trump has done to our country’s norms and institutions will only come into focus long after he is gone. But in this one way, this moment is an opportunity. Ideological partisans on both sides will benefit from reining in the power of the executive, and a weak, disorganized presidential administration offers a narrow window for Congress to regain some of the power it has ceded in the decades since Ronald Reagan first took office. It is a silver lining and a rare bipartisan opportunity in an otherwise disastrously partisan time.