How Congress could control the president

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?