Reviving a Constitutional Congress – Part 2

In recent years, Congress has even handed off its constitutional crown jewels—its exclusive powers, assigned in Article I, Sections 8 and 9, to determine federal taxing and spending. Several executive agencies now set and collect their own taxes or generate revenues in other ways, and spend the proceeds on themselves or on grant programs of their own devising, without congressional involvement. Most members of the current Congress cannot even remember the days when that body passed annual appropriations, agency by agency, often with riders directing how the agencies may and may not spend the funds. More recently, following its hapless efforts to use the debt ceiling to force policy concessions from the administration, Congress washed its hands of the borrowing power, too, telling the Treasury that it may borrow as needed to pay the government’s bills for a set period of time.

Today the consequences of congressional self-enfeeblement are vividly on display. Congress is under management of conservative Republican majorities in both House and Senate, and is facing a left-progressive President with a big agenda. One would think that Congress would be busily reclaiming its constitutional authorities and exercising them to moderate—not check, but at least balance—the President’s actions. But that is not happening.

A harbinger of the current disarray came shortly after last year’s elections, when President Obama announced unilateral revisions to immigration policy. Congressional Republicans promptly announced that the new Congress would forbid those changes with a rider to the appropriations of the Citizenship and Immigration Services agency. A few days later came an embarrassed retraction: staff had discovered that the CIS finances itself through fees and is independent of congressional appropriations.

Congress could have put the agency back on regular appropriations, but as things have turned out even that wouldn’t have helped, because Congress is unable to pass any appropriations bills (there are supposed to be 12 of them, covering various sets of executive agencies). Instead, it is obliged to resort once again to a Continuing Resolution (CR)—a last-minute blunderbuss statute that extends the previous year’s entire federal budget with broad percentage adjustments.

The CR surrenders Congress’s power of the purse. When Congress is appropriating individual agencies, it can adjust program spending and policy elements on a case-by-case basis. It doesn’t always get its way in the face of a possible presidential veto, but at least Congress is in the game, with a multitude of tactics and potential compromises in play. In contrast, the threat of shutting down the government is disproportionate to discrete policy disagreements. The tactic would be plausible only in the rare case where congressional opinion amounted to veto-proof majorities in both chambers. Even when Congress thinks it has the President cornered with an unpopular position, as in the wake of the horrible Planned Parenthood revelations, the game of CR chicken always comes down to a national crisis where the President—always at the center in times of crisis and able to control the terms of public debate—has the upper hand.

President Obama’s current strength is complementary evidence of constitutional drift. Since his party lost control of the Senate last November, he has launched a fusillade of aggressive executive initiatives, such as subjecting the Internet to comprehensive regulatory controls. I think he was within his constitutional rights on the Internet matter; but such a monumental change in national policy, almost certainly opposed by majorities of the relevant House and Senate committees, would have been inconceivable in the recent past.

The fact that President Obama is not a lame duck is not due to his popularity. His public approval ratings have been in the mid- to high-40s and lower than his disapproval ratings, and he is widely disliked in Congress by members of both parties. It is rather that the nature of the presidency has changed since the Twenty-Second Amendment limited presidents to two terms. In Presidential Power, a landmark study written during the Eisenhower administration, political scientist Richard Neustadt argued that presidents occupy an inherently weak office, and must devote themselves to continuous persuasion, popularity seeking, and cultivation of Congress in order to advance their agendas. This book became the operations manual for President Kennedy and all subsequent presidents—until now. The evolution of executive branch autonomy has transformed the presidency into an inherently powerful office, regardless of whether its occupant is well liked. President Obama and his advisers are the first to have realized that Neustadt is obsolete—that whatever his polls, the President has the wherewithal, using executive agencies, to make law and policy on his own through noon on January 20, 2017.

This is Part Two of a multi-part series. Keep watch for the next installment!

Reprinted by permission from Imprimis, a publication of Hillsdale College.