Congress again cedes power to president
The case for sunset law
Gordon L. Weil
Congress is routinely criticized for its inaction, weakness,
and failure to perform its constitutional duties. Two recent cases prove the point.
Upon his return from one of his regular visits to Ukraine,
Lindsay Graham, a Republican senator from South Carolina, suddenly died. President Zelenskyy lost one his most staunch
American supporters, a leader in opposition to Russia’s war against his
country. Graham was also an ally of
President Trump.
With strong GOP majority support, both houses of Congress
promptly passed a bill to impose tight controls on the oil sales that Russia
was using to finance its war. The bill
was named in Graham’s honor and was signed by Trump, meaning the law would go
into effect almost immediately.
Concerned about the effect of rising oil prices on
Republican chances in the midterm elections and continuing to be enthralled by
Putin’s autocratic control of Russia, Trump used a waiver in the Lindsay
O. Graham Act to suspend limits it imposed.
This action accompanied his decision to allow American diesel purchases
directly from Russia.
In effect, the law was just for show and Congress had done
nothing, missing the opportunity to take real action on the Ukraine war, using
the situation created by Graham’s unexpected death. In effect, it committed legislative suicide.
Under the act, the president may waive any sanction on
Russia by simply filing a report with Congress explaining the justification for
the waiver. No further action is required, and the waiver has no time limit.
Presidential termination of any sanction requires congressional
review and risks rejection, subject to the need to overcome a presidential veto. Termination could be irrelevant if a
president’s waiver continued endlessly. Congress again recovered none of the powers it
has ceded to the president over decades, retreating from its leadership role
under the Constitution.
The result, as shown by Trump’s action, is that the bill is
meaningless. And so is Congress. It is reasonable to wonder if any member ever
read the bill through to the end or if they concurred in an act that they knew
was an empty gesture. If they had
thought it could be politically useful to have voted for it, Trump deprived
them of that small benefit.
In the second case, Trump took advantage of congressional
inaction.
In 1930, Congress passed the highly protectionist Smoot-Hawley
tariff. History has assigned it a role
as one of the major contributors to the Great Depression that devastated the
economy of the 1930s.
The act was so extreme that some of the authority given to
the president had not been used during any of the next 16 presidencies. An obvious failure, it went unused, but Congress
failed to repeal it.
Believing that the American trade deficit is evidence of
extensive exploitation by other countries, Trump launched high tariffs against
most other countries. He targeted Canada,
which, unlike other countries, responded by raising its own tariffs. Two-way retaliation emerged, but Trump believed
that Canada favored other countries, which had not lifted their tariffs.
Section 338 of Smoot-Hawley gives the president power to retaliate
against other countries if they discriminate against American exports, and he
used it to impose 50 percent duties on Canada.
This law escapes most of the limits that allowed the Supreme Court to
strike down his broader effort to raise tariffs. Its use has created real hostility between
Canada and the U.S.
These two cases reveal defects in the relationship between
the president and Congress. Limiting
itself to general policy and glossing over key administrative details, Congress
gives the president wide powers in carrying out its intent. The president’s power is so unrestrained,
that the chief executive may counteract the very intent of the legislation.
The Supreme Court has found that the president has almost
unlimited power. The only checks on his
discretion are impeachment and conviction or elections. Once granted a power, the president can
distort or ignore its limits. Only the
Court can determine if the president violated the law, but it sees almost all
presidential actions as protected by executive authority.
These cases offer two messages about congressional authority
over presidents.
First, all legislation giving any authority to the president
should be subject to sunset. After a limited period of time, the grant of
executive powers would automatically terminate unless renewed for a similar
period by subsequent votes. It would be
worth exploring if Congress could now enact a sunset rule applying to all current
laws.
Second, a bipartisan body should be formed to identify laws
that are duplicative, unused or in need of updating. Congress could then be required
to take action on them.
If Congress continues giving presidents unlimited authority
on the assumption that an elected leader will follow democratic norms, it will
continue to see its power eroded. It has
options; it should use them.
