The Founding Fathers set up Congress as the most powerful of the three branches. Per the U.S. Constitution, Congress possesses “all legislative power.” This includes the most fundamental tools of governance and state-building, such as laying and collecting taxes, coining money and regulating its value and deciding what persons may join the nation as citizens. The monarchs of old Europe might have been able to wage war willy-nilly, but in America, the Founders permitted the legislature alone to “raise and support armies,” “provide and maintain a navy” and “declare war.”
Yet over the past century, Congress has diminished in power vis-a-vis the executive and judicial branches. The recent Zivotofsky case is an example of how the U.S. Supreme Court can (and has) weakened Congress. A law passed and signed by President George W. Bush directed the secretary of state, upon request by an individual, to designate on passports that Israel is the birthplace of U.S. citizens who were born in Jerusalem. The court disagreed and declared the executive alone can recognize a foreign country, basing their argument on the Constitution’s Reception Clause that the president “shall receive Ambassadors and other public Ministers.” The executive branch long has not recognized any nation as having sovereignty over most of Jerusalem.
I don’t personally buy the argument that the Constitution confers any such explicit unilateral recognition authority to the executive branch. But Congress has little recourse beyond enacting a constitutional amendment.
That said, Congress itself is the cause of most of the legislative branch’s diminishment. Since the Truman administration, Congress has stood by as presidents have taken the nation into armed conflicts without declarations of war. The legislature has established and appropriated funds to agencies issuing thousands of regulations–which have the effect of law–each year.
On its face, this is paradoxical. Why would a branch of government give power away, power that could be used to achieve its objectives? In some instances, Congress hands off authority to the executive branch because the subject area is exceedingly complex and dynamic. Having 535 individuals try to decide whether a particular drug should be licensed for use in medical procedures, for example, is asking too much of our representatives. So that task was assigned to the Food and Drug Administration.
For the most part, however, Congress concedes power to achieve other goals. Neomi J. Rao of George Mason University’s School of Law observes that delegating power to executive agencies makes lawmaking easier. The hard or politically charged decisions can be left to bureaucrats, who then can be trashed by congressmen for “abusing authority.” Additionally, ceding power creates opportunities for individual legislator influence over policy administration. During the financial crisis, for example, more than one legislator contacted the U.S. Treasury to seek help for banks in their home states.
Similarly, giving power to agencies creates opportunities for congressmen to win constituent votes by wrangling free their missing Social Security checks and helping them access government information or resources. Conceding power also enables Congress to concede responsibility for results. Witness the legislature’s failure to vote to authorize a policy to combat the Islamic State in Iraq and Syria. It is President Barack Obama’s war, and if it goes badly, some members of Congress will loudly blame him.
Giving up power has long-term consequences. Delegation of power undermines accountability by conveying law-making authority to unelected civil servants. Delegation grows the executive branch; somebody has to implement all of these delegated powers. The constitutional separation and balance of powers slowly collapses. We now have a $3 trillion executive branch that, as a matter of course, wields legislative and executive authority. (Judicial authority, too.)
The Founders erected a remarkable system of government. Ambition must be made to counteract ambition, in Madison’s famous dictum, and each branch would defend its powers from encroachment. Unfortunately, Congress has not worked that way for at least a half-century. In the pursuit of other goals, Congress has weakened itself as an institution and representative government as a whole.
It is a troubling situation, and figuring out how to align the incentives of legislators to support the legislative branch’s institutional interests may be the largest governance challenge we face.