WASHINGTON — As House Democrats dither over moving forward with impeachment in a divided government and Senate Republicans are satisfied confirming judges rather than passing legislation, a pressing question is emerging: What the hell is Congress good for, anyway?
The House and Senate have been divided many times. Congress and the presidency are rarely controlled by one party. But the extent to which this Congress is already proving itself worthless as a legislative body and as a check against the president is historic.
“This is the worst I’ve seen it,” congressional historian and American Enterprise Institute scholar Norman Ornstein told HuffPost this week. “With Nixon, we had people like Howard Baker, Hugh Scott, Barry Goldwater, Bill Cohen and John Rhodes. There is no equivalent today. And we have far worse corruption and lying.”
Ornstein added that Trump and his Cabinet are taking “defiance of Congress to a level we have not seen before.”
For the past century, the legislative branch has steadily handed its authority to the executive on various issues like trade, regulations and war-making powers. Lawmakers continued that tradition earlier this year, allowing Trump to circumvent the appropriations process with his emergency declaration and let him build portions of a wall along the U.S.-Mexico border.
The unprecedented move ― which a majority of Republicans supported ― opened the door for future presidents to similarly fund their priorities without the explicit approval of Congress.
“Part of what Congress does is take the easy way out; there’s a laziness factor to just let the executive do something,” said Kevin Kosar, vice president for policy at the R Street Institute, a libertarian think tank. “Part of it is also a quasi-parliamentary mentality that our legislature has fallen into. If there’s a Republican president, you wave the Republican flag. If the president is a Democrat, and you’re a Republican, you’re supposed to be reflexively against that person.”
“Trump and his Cabinet are taking 'defiance of Congress to a level we have not seen before.'”
- American Enterprise Institute scholar Norman Ornstein
While Democrats in the House certainly aren’t lining up behind Trump, they also aren’t lining up against him. Impeachment efforts in the House have been relegated to a few Democrats on a quixotic mission, and Speaker Nancy Pelosi (D-Calif.) has effectively pumped the brakes on all the talk.
Special counsel Robert Mueller declined to make a prosecutorial judgment on Trump and multiple examples of his potential obstruction of justice. But the Mueller report includes a whole section on Congress protecting “the integrity of its own proceedings, grand jury investigations, and federal criminal trials.”
Mueller seemed to be prodding Congress toward impeachment: “We concluded that Congress can validly regulate the president’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice,” the report said.
Instead of impeachment, however, congressional Democrats mostly met the report with yet another round of carefully worded press releases calling for more investigation.
The problem with that position is that the Trump administration is barely cooperating with those investigations.
Trump himself said he would ignore every subpoena related to oversight of his administration. In defiance of the law, the Treasury Department refuses to turn over his tax returns. Members of his administration routinely don’t show up to testify before the House ― Attorney General William Barr turned down his scheduled appearance last week, and Commerce Secretary Wilbur Ross passed on his invitation to speak before the Appropriations Committee. Trump is even suing his own banks to block them from turning over his financial statements.
Pelosi said last week that she viewed the president’s “blanket” position refusing to answer to any document or testimony requests as “obstruction of justice.” But the rebukes ring hollow when Pelosi simultaneously cautions Democrats against opening impeachment proceedings, worrying it could cost her party at the ballot box in 2020.
She even told The New York Times last week that Democrats need to remain in the center to “inoculate” against the possibility that Trump refuses to vacate the presidency in a close election.
So scared are Democrats of a standoff with Trump that they’ve convinced themselves they need to play nice ― because the truth is, they have hardly any remedy for Trump playing hardball.
After Barr failed to show up to a House Judiciary hearing or provide an unredacted copy of Mueller’s report as mandated in a congressional subpoena, Judiciary Chairman Jerry Nadler (D-N.Y.) said the nation’s top law enforcement officer was “trying to render Congress inert as a separate and coequal branch of government.”
The committee is expected to hold Barr in contempt, but Democrats have few viable moves remaining. There is some talk of holding administration officials in “inherent contempt,” potentially subjecting them to jail time or hefty fines. But the dispute is unlikely to be resolved without years of litigation in federal court.
“We are at a very critical moment in this nation’s history,” House Oversight Chairman Elijah Cummings (D-Md.) told reporters last week. “And I’m praying that the American people will wake up and understand that the president is blocking us from interviewing White House personnel.”
Cummings said everyone needed to understand that, when the administration denies Congress access to key documents or witnesses, “what they’re doing is saying, ‘Congress, you don’t count. You have no ability to do your job under the Constitution.’”
He added that Congress cannot have “a presidency that is run as if it were a king or dictator.”
But short of impeachment ― which won’t result in Trump’s removal without Republican support ― and some ineffectual lawsuits, Congress really doesn’t have many good ways to bend the executive to its will.
“So scared are Democrats of a standoff with Trump that they’ve convinced themselves they need to play nice ― because the truth is, they have hardly any remedy for Trump playing hardball.”
Traditionally, one check on the executive branch would be Congress’ power of the purse. Lawmakers can block money from going to any agency or action simply by writing it into an appropriations bill. But Democrats seem unwilling to risk a shutdown over, say, blocking money from going to Trump’s national emergency border wall.
It’s risky to threaten shutdowns with a president who’s willing to close the government. And Trump could always defy Congress, expecting lawmakers or the courts to either do nothing or at least be slow to respond.
Part of the problem is that Democrats are still hoping for some legislative achievements, like an infrastructure bill or drug-pricing legislation. It’s difficult for Democratic leaders to make the case that Trump is a corrupt president when they’re simultaneously heading to the White House to meet with him.
But hopes for a big infrastructure package making it to Trump’s desk are fading fast. So, too, are the chances for action on other issues like immigration, gun control or climate change. Not only are Democrats incapable of meeting the oversight challenges of the Trump administration, but they’re also unable to pass their legislative priorities. Senate Majority Leader Mitch McConnell (R-Ky.) bragged last week that the GOP majority was turning the Senate into a “legislative graveyard.”
But a lack of oversight or legislative activity is hardly the only reason Congress is failing at its job. Lawmakers have voted for years to kneecap their ability to check the president.
The executive branch is composed of 180 agencies and more than 4 million civilian and military employees. In contrast, the legislative branch has about a dozen supporting agencies and only about 30,000 employees, according to a report by The Constitution Project. While Congress passes about 50 laws every year ― many of which rename post offices or transfer federal land to states or other groups ― executive agencies issue roughly 4,000 substantive rules every year. The Constitution Project report estimates that 80 to 100 of those rules have an economic effect of more than $100 million.
The diminishing power of Congress got much worse once Newt Gingrich became speaker in 1995 and cut committee staff by one-third. But the problem has gotten even worse in recent years, as congressional pay has remained stagnant in a city with rising costs and experienced staffers are lured to higher-paying jobs on the other side of the revolving door.
A Sunlight Foundation Report found that most congressional wages have not risen in two decades and that companies spend more on lobbying in Washington than the U.S. government spends on all staff pay for the House of Representatives.
“What they’re doing is saying, ‘Congress, you don’t count. You have no ability to do your job under the Constitution.’”
- House Oversight Chairman Elijah Cummings (D-Md.)
But the problem of a feeble Congress is also inflicted for partisan reasons. GOP congressional leaders like McConnell and former House Speaker Paul Ryan (R-Wis.) were far more interested in enacting a Republican legislative agenda that Trump could sign than in checking the president in any way. And while Democrats took back the House earlier this year and have started numerous investigations, the administration has stymied many of their inquiries.
“This is not Congress against the president,” Ornstein told HuffPost. “If it were, I would be confident it would be resolved appropriately. But every Republican in the House and Senate are siding with the corrupt, lying autocrats in the administration. It is Democrats against the president and the Republican Senate, with a stacked judiciary adding to the problem.”
Take, for example, the Senate shedding its longstanding rules to favor Trump. The chamber’s advice and consent role under the Constitution ― as well as the filibuster ― was a way for the chamber to hoard power as an institution. If a president wanted someone confirmed, they’d have to make sure that person was exceptionally qualified and amenable to at least some members of both parties.
But the elimination of supermajority requirements for executive and judicial nominations in recent years, including for the Supreme Court, has greatly reduced the power of individual senators and the minority. Nominees no longer require anyone from the minority party to support their nomination, meaning less qualified and more partisan people are entering government and the judiciary.
Republicans, meanwhile, reject the notion that rule changes concerning executive and judicial nominations have weakened the upper chamber as an institution. They argue that reducing floor debate time for certain nominees, one such change they pushed through earlier this year, has made the upper chamber function more efficiently, as intended by the founders.
“It’s actually making the Senate operational and responsive again, where before this was a place where nothing was getting done,” Sen. Mike Rounds (R-S.D.) said last week. “I see it more as the restoration of how Congress used to function.”
Of course, Democrats see it much differently. They argue that the GOP move will allow Trump and future presidents to run roughshod over the Senate.
Sen. Tim Kaine (D-Va.) ― one of the lonely and loudest voices in Congress calling on members to reassert their institutional authority on declarations of war and military force ― said the Trump administration is flouting congressional prerogatives at levels not seen before.
Kaine cited recent reports that Trump’s Department of Energy kept secret numerous authorizations allowing U.S. nuclear energy companies to share sensitive technological information with Saudi Arabia from both the public and congressional committees that have jurisdiction over nuclear proliferation and safety.
“They want to completely ignore the Article I branch,” Kaine said, expressing frustration at Democrats’ inability to find any means of recourse in a GOP-controlled Senate. “What do you do?”
He added to his colleagues: “Hey guys, let’s stand for the institution here.”
Arthur Delaney contributed to this report.