Last week at NYU’s Democracy Project‘s series of 100 essays in 100 days, we featured two essays, among others, on the role of Congress in this moment.
One, from congressional expert Molly Reynolds, is titled When It Comes to its Spending Power, Congress Must Save Itself. The second, from Andy McCarthy, who is former federal prosecutor, bestselling author, and National Review contributing editor, is titled Bring Back Congress.
Here’s an excerpt first from Molly’s piece:
The threat to Congress comes not only from the executive branch directly. While, for a range of historical and institutional reasons, adjudicating spending questions is not entirely comfortable terrain for judges, the federal courts have become the primary venue in which the battle over the executive’s conduct is being fought. The decisions so far have been a mixed bag for Congress and, because they’ve mostly come from district and circuit courts, many are still winding their way through the legal process. But even if the judiciary ends up rendering decisions in favor of congressional choices—an outcome, to be clear, that’s far from certain—relying on the courts to backstop congressional power can be a dangerous business. The harm that can be done while litigation unfolds can be real, and the time to resolution can be long…
There are steps Congress can take to address this worsening imbalance of power between the branches. Moving language, for example, that has historically appeared in documents accompanying spending bills into the text of legislation might help bolster pro-Congress arguments in future litigation….
Writing new laws that seek to prevent the executive branch from overreach—while a helpful start—only goes so far when the underlying problem is that the very same executive branch is disregarding the laws Congress has already written. Any meaningful, long-term solution that restores congressional power will require members of Congress to decide for themselves to withhold support for something the executive branch cares about. In a period of unified party control and strong partisan loyalty, it is somewhat difficult to imagine the congressional majority stepping up to the plate.
Here is an excerpt from Andy’s piece:
Just as we sometimes unthinkingly laud democracy when we mean republic, so too are we apt to describe the branches of our federal government as co-equal.
No. They are peers, to be sure. Each is bound by the rudimentary principle that their powers are separate: these discrete authorities may and often should be exercised in unison (e.g., the president and Congress acting together against a foreign threat to our defense), but never by the same set of hands. The separate branches, however, are not equals.
Congress is the Article I power. As the breadth of its enumerated powers elucidates, it is primus inter pares. In a republic framed to achieve representative governance, it is the representative. Indeed, in the Constitution’s original blueprint, the House was the only component of the three branches that would be directly elected by the people – and only by the people in the jurisdiction to be represented by a congressman. (It would be a man back then, but a self-correcting republic overcomes all manner of waywardness.)
It was Congress that embodied the republic’s democratic aspirations. Our aspirations haven’t changed, but without a functioning legislative branch, they are certain to be frustrated. Our governing framework cannot be sustained in such circumstances.
We are a deeply divided country. Yet, that is our default condition historically. We’ve thrived, not self-immolated, because constitutional government through deliberative legislation by our representatives works. It provides stability even when our differences are immense. Without it, our divisions will remain but our stability will continue to erode as each presidential election portends new, contradictory extremes of government by executive order.