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Congress's Aversion to Power Undercuts Constitutional Safegaurds

A foundational principle behind the structure of the U.S. government, as provided by the Constitution, is that human beings are power hungry. In separating the powers inherent to government and also empowering each branch with checks over the other, the Founding Fathers’ idea was to counteract ambition with ambition, and thereby keep any one of the three branches from gaining ascendancy over the others.

It’s a great idea. And heretofore, it’s worked pretty well. Congress, the Presidency, and the Judiciary historically have sought to protect their respective turfs … until recently. In particular, Congress has abandoned institutional pride.

There are a number of reasons for this, but the centralization of party power and blind party loyalties are the main culprits. During the birth and rise of the modern administrative state, congressional committees exercised a great deal of independent control. This independence encouraged vigorous oversight of the federal agencies that fell under committee jurisdiction. Such oversight was a source of power, and, just as the Founding Fathers planned, members of Congress could (then) be counted on to desire power. The perfect example is the great John Dingell, a man with whom I mostly disagree, but for whom I harbor a great deal of respect. In the early 1980s, he ran the House Energy and Commerce Committee like a medieval fiefdom. There was no jurisdiction he did not covet. Indeed, there were a number of such fiefdoms, and each mini-baron cared deeply about the agencies within his or her purview.

It’s not so anymore. Political parties have centralized control over both chambers of Congress. Members of the party leadership in both houses call the shots now. Committee leaders have been disempowered, which has led to a disengagement by the committees from effective oversight. There’s no real power in it anymore.

Yet an even more consequential factor in the downfall of Congress’s self-respect is partisanship. For reasons I do not comprehend, members of Congress now give priority to their political party over their own institution. If a Republican is in charge, congressional Republicans do not care about presidential aggrandizement (see, War on Terror). If a Democrat is in charge, then congressional Democrats similarly do not care about presidential aggrandizement (see, Phone and Pen). And given the parliamentary means available, in addition to the weakening of committees in general, it is easy for the minority party to neutralize any effective oversight by the majority party, even when the presidency and the Congress are controlled by different parties.

Alarmingly, members of Congress are now willing to sacrifice institutional power to the president—at the behest of special interests rather than the party.

Yesterday, 72 members of Congress sent a letter to the Obama administration, calling for the President to permanently withdraw both the Atlantic Ocean and Arctic Ocean from any future offshore oil and gas drilling. Putting aside the dubious idea that a president can unilaterally effect domestic policies that a future president is unable to reverse, the letter reflects a troubling logic. As the press release notes:

In April of 2015, Congressman Pallone and Senator Robert Menendez (D-NJ) introduced the Clean Ocean and Safe Tourism (COAST) Anti-Drilling Act to ban oil and gas exploration, development, and production in the Atlantic Ocean. Offshore drilling is a threat to New Jersey’s coastal communities, especially beaches, which are the primary driver of a tourism economy that supports 312,000 jobs and generates $38 billion in economic activities for the state each year. It can also damage important commercial and recreational fisheries. 

In September of 2015, Congressman Huffman introduced the Stop Arctic Ocean Drilling Act of 2015, which would prohibit new or renewed oil and gas leasing in the Arctic Ocean Planning Areas of the Outer Continental Shelf.  It would stop new leasing for the exploration, development or production of oil, natural gas or any other minerals in the Arctic Ocean and not allow for any renewal of existing leases.

These members of Congress attempted to achieve this same policy through legislation. They were unable to do so. Now they seek it by presidential fiat. Shouldn’t they be concerned about a president’s supposed power to render unalterable determinations, especially after such decisions were already dismissed by their colleagues? I fear the answer to this question is found in the same press release quoted above, which trumpets endorsements from the same environmental special interests that long have been pushing for the use of this presidential power.

I fear we have an asymmetry of ambition, that it’s structural, and that it’s harming the body politic. The presidency has become a vast policymaking apparatus. This encourages exercise of power and boundary-pushing for new power, because a president can be counted on to crave power, in accordance with the expectations of the Founding Fathers. Congress, on the other hand, now gives priority to the party’s ambitions, which are best advanced by “their guy” in the Oval Office. Worse yet, members of Congress may be adopting a practice of giving priority to individual special interests that comprise the party—even if those special interest goals are inimical to Congress’s power.

Again, I can’t explain it. It makes no sense to me that Congress would give away power. Whatever the psychology of these irrational decisions, they undercut the assumptions on which the Constitution is based.