The last couple of weeks have been less than auspicious for the first branch of government. Whatever your partisan views, you are likely to have been dismayed by the congressional response (or really, the lack thereof) on the child migrant issue in the run-up to the August recess. House GOP leaders, after suing President Obama for selectively enforcing provisions of the Affordable Care Act (provisions they had themselves opposed), effectively punted on the crisis on our southern border, arguing that the President could and should take unilateral action to address it.
In another telling commentary on inter-branch power dynamics, we also had confirmation the CIA has been spying on the Senate committee responsible for overseeing it—this despite the flat denials CIA Director John Brennan had previously offered. Yet Brennan has neither resigned nor been fired—indeed, President Obama has since declared that his CIA director has his full confidence.
Things have descended to the point where the New York Times felt obliged to run a multi-media feature, Measuring the 113th Congress’s Futility, that intermixes telling quotes from feuding partisans with “worst ever” data points on declining legislative productivity, worsening polarization, and plummeting public confidence.
However damning, the trend lines cited by the Times overlook perhaps the most damaging effects of hyper-partisanship and the congressional dysfunction it produces: the inadvertent but nonetheless steady ceding of power and authority from Congress to the executive. When Congress is so sharply and evenly divided, it cannot act effectively—whether it be to develop a needed legislative response to a pressing issue, to oversee the executive branch, or—not least—to ward off encroachments against its constitutional powers. All the while, and in stark contrast, the unitary executive has both the means and the motivation to press on.
Thus President Obama, who just last fall had forsworn unilateral action on the child migrant issue on the grounds that we are a nation of laws, is now preparing to take it. Progressives gleeful at the prospect of a President Obama having a free hand to selectively enforce and reset the nation’s immigration laws might ask themselves whether they would as pleased with the prospect of a different president, perhaps one with the last name of Romney or for that matter Cruz, having the same license. Dismissing this thought experiment as an unlikely hypothetical is to whistle past the constitutional graveyard. As Ross Douthat and the Washington Post have pointed out, we are fast approaching a dangerous crossroads. Careening through it in the way that seems likely to occur may yield short term political advantage to the President and his party, but at the expense of the long run health of the Constitution.
These developments brought to mind remarks I was privileged to hear three weeks ago from former Representative Lee Hamilton as he accepted a distinguished service award from the U.S. Association of Former Members of Congress. Acknowledging the current sorry state of the institution to which he had dedicated his career, Hamilton began by noting that “Congress needs help.” He went on to observe that “over the past several decades, the balance of power in our system is shifting decisively to the executive branch. One has to ask how far down that path we can go, and still have representative democracy.” In Hamilton’s view, “we should not give up on the separation of powers.” The goal should be “not to weaken the presidency, but to strengthen the Congress—and to get a better balance of government power. Our system functions best when we have a strong President and a strong Congress.”
The most striking part of Hamilton’s speech was his peroration, in which he argued that friends of representative democracy need to come to the defense of Congress. The president, the public, and the media certainly aren’t going to do it; nor are the members themselves, who notoriously have incentives to run against the body in which they serve. “We have to step up, to make clear the importance of the role of the Congress in a representative democracy…Our political leaders confront a terribly difficult political environment. The country is both deeply and evenly divided along partisan and ideological lines. Making this huge, diverse, complicated country work, resolving our differences, building a consensus behind a solution is tough going. Representative democracy is one of the greatest achievements in the history of mankind. But no one ever said it was going to be easy.”
Indeed, it is inevitably messy, difficult, and at times maddening. But friends of representative democracy need to keep pointing out that, however inconvenient it may be in the short term, in the long run it beats the alternative. We also need to redouble our efforts to find ways in which Congress can carry out the central functions our system of government assigns to it. Congress needs our help.