How Congress could control the president
Fixing slippage in the system
Gordon L. Weil
The federal government has changed a lot recently. Most of the reason for the almost revolutionary
change has come from within the system itself.
Congress is heavily responsible. It is supposed to set national policy. The president is supposed to execute that
policy. That was the idea behind the
Constitution, but it didn’t work for long.
Constitutional amendments were expected to meet change, but they haven’t
worked.
The world is far more complicated than it was two centuries
ago. Time brings change and change creates complexity. While it continues to try to set national
policy, Congress has increasingly asked the executive branch to fill in the
details. You know, the place where the
devil lives.
While policy is set in broad terms, it is reshaped when applied
to concrete situations. Because of emergencies
or their enjoyment of exercising power, presidents have increasingly become
legislators, often using executive orders to substitute for acts of Congress.
The current Supreme Court has added a new twist on how the government
should work. It has ruled that if a federal
power is not clearly defined as legislative or judicial, it belongs to the executive. Their theory of the unitary presidency leads
to the concentration of power. Though presidents
are elected, they have unchecked, regal authority during their term.
Congress has created independent agencies to regulate private
action, maintaining uniform and expert application of the law. Such
agencies exercise delegated legislative power and are kept relatively free of short-term
political demands, even when made by the president.
The Supreme Court has ruled that such agencies are subject
to the will of the chief executive. Presidents may use the power of appointment
and removal of regulators to reshape the law.
Congress has lost its powers; I have previously
proposed how they might be recovered.
Congress could counter the centralization of power under the
president. It determines the scope of
its delegation of authority. It has the
power of the purse, enabling it to direct if and how the executive spends
federal funds.
All presidents, including Trump, have acknowledged these
congressional powers, though they may try to stretch the scope of the authority
granted to them under law. The Supreme
Court has refrained in recent years from restraining Trump and encouraged the
expansion of executive power.
A president can enjoy the powers of office achieved by
election while Congress could recover its inherent ability to set the limits on
most forms of executive power. Two tools
– legislative authorization and the exclusive power to authorize federal
spending – can do the job.
Congress should always approve any presidential authority
subject to a sunset clause. Every relevant
Act of Congress should include a provision terminating the authority it grants without
new congressional action. For existing executive
branch authority, Congress should enact an across-the-board sunset clause.
This week, Trump showed why Congress needs to recapture its authority. He relied on a never-used provision of the
ultra-protectionist Smoot-Hawley
Act of 1930 to impose 50 percent tariffs on Canadian exports. The provision had been unused because the act
was a major contributor to the Great Depression and abandoned.
The provision, almost a century old, had been deemed
dead. Yet nobody had killed it. Trump unearthed. Sunsetting would finally have ended it long
ago.
It allowed Trump to decide that Canada’s trade measures are discriminatory
for which it could be punished. Because
the Canadian tariffs in question were retaliation against Trump’s prior tariff
increases, his move amounted to declaring a trade war.
Under a sunset policy, presidents could still have their
policies adopted by a friendly Congress, subject to sunsetting during the next
presidential term. An intervening
presidential campaign could allow for public debate on the policy. When renewal time came, it could be the subject
of renewed political negotiations.
Another way for Congress to control the executive is through
authorizing or denying appropriations, a power that it alone can exercise. It can refuse to fund proposed presidential
initiatives. It can mandate that funds
must be used for specific purposes; Trump should not have been able to eliminate
the Agency for International Development by cutting its funds.
The problem arises of what sanction Congress can use, aside
from impeachment and conviction, if it is defied on spending by the president. One obvious option is to block other
presidential requests, though that can open new political issues.
The president controls executive office operations funded at
more than half-billion dollars annually.
Congress might consider enacting an automatic 10 percent reduction each
time required spending is halted by the president. This, too, might be accomplished by
across-the-board legislation.
These changes would require action by Congress and approval
by the president.
If Congress does not defend its constitutional powers, then, like the Supreme Court, it is little more than a presidential adornment. Is that what Americans want?