OPINION: Congress Is No Longer an Equal Branch

Though Congress-watchers have been focused since the beginning of the year on the ever-shrinking power of Capitol Hill, the common wisdom finally seems to be catching up. The New York Times recently headlined the online version of a front-page story, “Trump Tramples Congress’s Power, With Little Challenge From G.O.P.” Two days later, the Wall Street Journal took a different angle: “Cases on Trump’s Powers Raise Stakes for Congress: If president persuades courts on his expansive claims of authority, it would shrink the domain of the legislative branch.” “Expansive claims of authority” is putting it mildly. We’re not even a quarter of the way through the second Trump administration, and the list of assaults on Congress’s prerogatives seems to grow every day. The White House is trying to claw back money Congress appropriated; it launched a military assault outside U.S. territorial waters without even notifying members; it is trying to cancel $5 billion in foreign aid approved by Congress; it’s pursued an economy-altering regime of tariffs — which the Constitution explicitly places in Congress’s domain; it’s repeatedly ousted administration officials just voted in by Congress; it has sought aggressively to block or at least control congressional oversight (another constitutional mandate)… By the time you read this, there will undoubtedly be more examples. To some extent, this is simply a continuation of long-term trends. As New York Times reporters Julian E. Barnes and Catie Edmonson write, “For nearly a century, Democratic and Republican presidents alike have sought to amass more power, particularly to conduct foreign policy and military operations, and with a few exceptions, succeeded in chipping away at congressional influence.” Or to put it more succinctly, as former federal judge and current Stanford law professor Michael McConnell does in the Wall Street Journal, “When the president pushes the envelope, the other side of the envelope is Congress.” And in certain arenas, most notably crafting the federal budget and war powers, Congress seemed content even before the first Trump administration to give the president more power. What seems different this time is the extent to which the leadership in both chambers has bowed to the administration’s wishes and avoided standing up for Congress’s authority. I’ll be honest: I think this is misguided. I don’t think it’s an accident that the U.S. reached the apogee of its power at a time when Congress was a fully functioning, equal branch of government. There were plenty of reasons, ranging from the deep subject-matter expertise of prominent committee chairs and even rank-and-file members to policies that were more deliberative, representative, and sustainable because they often reflected compromise across regions, constituencies, and ideologies. Everything from the Social Security Act of 1935 to the Civil Rights Act of 1964 to the War Powers Resolution of 1973 came out of a Congress not just willing, but eminently capable of working collaboratively in a determination to flex its muscles. Yet even I, an unabashed and enthusiastic proponent of congressional power, have to recognize that those days are likely done. Since the 1990s, deep partisan divides — stoked by leaders seeking to cement their power — have made it difficult (though not impossible) to reach compromises across the aisle. The centralization of power in leadership hands has robbed committees of their ability to deliberate on policy, hear from expert witnesses, and apply technical expertise to legislation. And perhaps more than anything else, several generations of members have lost the instinct of congressional power — and along with it, the knowledge and legislative skills necessary to sustain Congress as a co-equal branch. There are the occasional glimmers of a congressional pulse — the Epstein files are a good example — but they stand out because they’re so rare. Still, while Congress may never return to its powerful heyday, let alone to the roles our founders envisioned for it, there is no question that it can re-assert some of its authority whenever its members choose to do so. They can hold meaningful oversight hearings; they can withhold funding for administration initiatives they dislike; they can challenge, in court, presidential attempts to steal their constitutional authority. They can even craft and then pass legislation they believe the country needs. Congress has the right; it’s just a matter of will.                      

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Lee Hamilton, 94, is a senior advisor for the Indiana University (IU) Center on Representative Government, distinguished scholar at the IU Hamilton Lugar School of Global and International Studies, and professor of practice at the IU O’Neill School of Public and Environmental Affairs. Hamilton, a Democrat, was a member of the U.S. House of Representatives for 34 years (1965-1999), representing a district in south-central Indiana.