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01/04/2017

Make Congress Great Again
Michael Ramsey

An insightful post at Liberty Law Blog by Yuval Levin before the election argued that Congress must have more ambition in order to make the framers' separation of powers design effective. It did not, however, give many specific proposals.  Here are five for the new Congress to consider.  None is constitutionally required, but all would help restore Congress to what the framers expected it to be.

(1) Eliminate the filibuster.  The filibuster isn't unconstitutional (by Article I, Section 5, the Senate has power to make its own "Rules of its Proceedings") but it undermines the framers' design.  As Levin argues, the framers wanted an energetic Congress to counter their energetic executive.  The modern filibuster, in a time of close partisan division, saps Congress' energy by making all but the most banal legislation impossible (except for the obscure "budget reconciliation" or in the unusual case of one party having more than 60 Senators).  It also makes it difficult for Congress to confront an overaggressive executive because it divides Congress by party.  Not coincidentally, Congress has not played a substantial role in governing the country in two decades, apart from the brief time between 2008 and 2010 when one party held 60 seats.

Some people may say it's better if Congress doesn't act (especially if the "wrong" party holds the majority).  But in the modern world the result of congressional inaction isn't governmental inaction -- it's government by the executive.  (See Josh Blackman's essay Gridlock).  Eliminating the filibuster puts the legislative power back where it belongs -- for better or worse, as to particular lawmaking, but properly from the perspective of the constitutional design.

(2) Declare War on ISIS.  The US is in effect at war with ISIS, assisting a major ground offensive against Mosul and contemplating another in northeast Syria.  And rightfully so: ISIS is a monstrosity that has attacked the US directly and threatens the entire global legal order with its rejection of the basic principles of modern civilization.  It is the most Nazi-like global entity since the Nazis.  Broad majorities of Congress and of the US public appear to support military action.  But Congress has done nothing (despite the President's requests), leaving the President to assert a tenuous claim to authorization from a statute (the 2001 AUMF) that manifestly has nothing to do with ISIS.  No entity should be able to attack the US without drawing a response from Congress.  This is an embarrassment, and one Congress can easily fix.

And Congress should actually declare war.  A formal declaration of war isn't constitutionally required (see here), but it would send a powerful message of seriousness, resolve and engagement -- not just about the US commitment against ISIS, but also about Congress' determination to take the active role the framers envisioned.

Moreover, consistent with this newfound leadership, Congress can limit ground troops by providing that, notwithstanding the declaration of war, any material deployment of US ground troops must receive further authorization from Congress.  That limitation is entirely consistent with Congress' war power, as reflected in Congress' authorization of limited war in the early post-ratification period and with early Court decisions recognizing that the President's conduct of war is bound by the limits Congress sets on it (Bas v. Tingy; Little v. Barreme).

(3) Pass the REINS Act.  This proposal, endorsed by all Republicans (at a time it had no chance of passing) requires major administrative agency initiatives to receive approval by Congress. (See here from George Will, concluding that "[t]he REINS Act would begin Congress’s retrieval from the executive branch of responsibilities the Founders vested in the legislative branch.").  A central and obvious characteristic of modern governance is the rise of executive lawmaking through agencies.  Whether or not unconstitutional, agency lawmaking undermines the founding design.  Not only has Congress lost its role as the shaper of legislative policy, but inertia in Congress prevents its effective supervision of agency action.  The REINS Act reverses the effect of inertia -- and, one hopes, would prod Congress into a more active role in major policy decisions.

(4) Pass a REINS act for international agreements.  US foreign policy looks weak and inconsistent if the President makes major international commitments that don't enjoy broad support at home.  The Constitution’s design addressed this problem with the supermajority requirement of the treatymaking clause.  In the modern era congressional approval has become a substitute, at least for trade agreements.  But inertia in Congress has opened the way for more unilateral presidential agreements, such as President Obama's Iran nuclear deal and Paris climate change agreement.  With these agreements, the President has made commitments a majority of Congress opposes.  Whether or not strictly unconstitutional (see my somewhat equivocal assessment here), these agreements undermine the framers' design and further marginalize Congress.

An international version of the REINS act would require that major long-term commitments by the US (whether formally binding or nonbinding) cannot take effect without Congress' approval.  This is likely constitutional; while the President has some independent authority to make low level agreements and nonbinding agreements as part of the executive power over foreign affairs, agreements such as the Iran and Paris agreements threaten the treatymaking power and thus are properly resisted.

(5) Disaggregate the appropriations process.  Madison wrote in Federalist 58 that the power of appropriations was Congress' most significant check on the executive:

The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government. They, in a word, hold the purse—that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

He was assuming that presidential initiatives would require individualized funding.  But, as has been widely observed, modern appropriations practice through omnibus spending bills turns the withholding of funding into too blunt an instrument.  Moreover, the political narrative has become that if the President vetoes an omnibus spending bill because of Congress' failure to fund a particular item, the resulting "shut down" of the government is Congress' fault.  Thus appropriations limits have become too powerful a weapon to use.  Further, omnibus spending dilutes Congress' responsibility for what it does spend and saps Congress' will to address spending items individually.  Again, there's nothing strictly unconstitutional about omnibus spending, but it's a process that undermines the structural assumptions on which the Constitution was based.

Each of these proposals requires Congress to take responsibility.  Perhaps that is asking too much.  Commentators for a generation have urged Congress to take more responsibility, without effect.  But as the implications for constitutional government become more acute and apparent, and as people become increasingly frustrated with Congress' inability to govern, perhaps a tipping point has been reached.  And in particular, both parties may feel unhappy about executive governance, one side from recent experience and the other from contemplation of what may come.  The alternative to executive governance is a return to congressional governance, as the Constitution intended.