The House speaker, Nancy Pelosi, was recently asked if Congress sees itself as the equal of the presidency in sharp conflicts between the legislative and executive branches. “I think we’re a superior branch,” Pelosi answered. This drew rebukes from, among others, Rudy Giuliani, who tweeted, “Thank you for the help in convincing a court that your four investigations trying to redo Mueller is a violation of our constitutional system of coequal branches.”
Pelosi had the better of the argument — though not in quite the way she suggested. Congress is clearly the preeminent branch of our government, but not because of its oversight powers. It is foremost in our constitutional scheme because of its capacity to make the laws. To reassert itself, Congress will need to restore its atrophied legislative muscles.
Giuliani is hardly the first to suggest our system has “coequal” branches. But the structure of the Constitution and the words of its framers contradict that view. “In republican government, the legislative authority necessarily predominates,” James Madison wrote in Federalist 51.
Congress has broad leeway to make the laws, within its enumerated powers, while the president has to enforce those laws and the courts have to interpret them. That means the second and third branches are meant to operate within the frameworks created by the first. The veto and judicial review can trim this power at the margins, but they are far from making the other branches equal to a Congress eager to assert itself.
As the historian Garry Wills once put it, “No matter what the sequence of action among the three departments, if the process is played out to the end, Congress always gets the last say (if it wants it).”
But that final point — “if it wants it” — gets at the problem that now confronts our constitutional system: Congress doesn’t want its power. Both executive agencies and courts have become more powerful in recent decades, and both now effectively make laws. But though critics of both trends tend to attribute them to excessive ambitions among judges, presidents, or regulators, more important has been the lack of constitutional ambition among members of Congress.
Whether driven by partisanship, misguided by perverse media and political incentives, or simply put off by the burdens of responsibility, members of both houses are now reluctant to really legislate. When they do enact statutes, they are frequently broad and vague, setting general goals and then letting the executive branch figure out how to pursue them and letting judges clean up the ensuing mess (as seen in health care, environmental policy, education and beyond). Meanwhile, the budget process is dysfunctional, and most members are rarely involved in significant legislative work.
Instead, they often operate as commentators — criticizing or defending the president like everybody else. This current Congress, like the last one, seems largely to be an arena for debating President Donald Trump.
Our constitutional system cannot function this way. To repair it, Congress will have to reclaim its place. This certainly means taking oversight seriously, and the assorted misbehaviors of the Trump administration must surely be on the agenda. But it is crucial that the reassertion of congressional power be at its core a reassertion of legislative power, not just of oversight. Fighting the president is not what Congress is for. And the fact that Congress has forgotten what it is for is bad news for our constitutional system.
What might a recovery of Congress’s sense of purpose look like? It would have to begin with a recognition that Congress has become too consolidated in an effort to compete with the president’s executive capacities rather than exercising its own legislative capacities.
The budget process most fully embodies this deformation, and a revival of the Congress would need to begin with some deconsolidation of that process — for instance, by eliminating the distinction between authorization and appropriation, Congress could set spending levels on programs when it defines those programs rather than leaving all budget decisions for one big up or down vote as a shutdown nears. Breaking up budgeting into smaller portions would create more opportunities for real legislative work.
Similarly, some of the consolidated power of party leaders in Congress should be distributed again through the congressional committees, enabling more members to be more involved taking the lead in legislating and letting some unpredictable coalitions take shape. When committees’ work matters, members of those committees gain meaningful expertise and invest their ambition in bargaining rather than posturing.
The centralization of leadership authority has had everything to do with presidential power. As Rep. Justin Amash, R-Mich., put it to his constituents at a recent town hall, “Right now, under our current system, the president only has to work with a few people; all he has to do is work things out with a few leaders,” and this gives him much more leverage than he should have over Congress. If Congress is going to reassert its legislative power, it will need to strengthen the committees that are its foremost legislative instruments.
In both cases, and in related changes to floor procedures and other rules, reformers of Congress must remember that the institution exists to compel coalitions into being. Congress is not a European parliament, aimed at enabling the majority party to have its way until it gets voted out. The Madisonian view of legislative power is all about inducing compromise in a divided society.
Pure majoritarian reforms, like eliminating the filibuster in the Senate, appeal to the ideal of centralized power that has driven Congress into a ditch, not to the constitutional vision that will get it out. Congress needs to recover its own best instincts so that it can help our larger political culture escape the poisonous polarization that has overtaken it. No other institution in our system could do it.
Combating the misbegotten notion that the branches of our government are “coequal” could help start that revival. But ultimately, Congress will need to take responsibility and legislate, and to grasp that its dysfunctions are largely self-imposed — and so solutions must be, too.