Congress is unquestionably polarized. Many of the nation’s most pressing issues are mired in gridlock. These facets of our politics are understood, but the consequences of our current circumstances rarely receive the attention they clearly warrant.

Indiana University political scientists Edward Carmines and Matthew Fowler address why these consequences matter in their recently published paper, “The Temptation of Executive Authority.” The authors thoroughly detail a specific outcome of our current political environment that many on the congressional capacity bandwagon have warned of for years: when Congress doesn’t have the capacity to legislate, the president will.

Citing a perfect storm of increased polarization, contentious elections for congressional majorities and the White House, and regular instances of divided government, the authors argue that recent presidents of both parties have taken advantage of the inability and/or unwillingness of Congress to craft and pass legislation and have done so themselves. These reinforcing influences “have led to the expansion of executive authority at the expense of a diminished legislature.” In short, the mantra of three co-equal branches of government is becoming less accurate as the executive gains strength.

According to Carmines and Fowler, “Congress, in a nutshell, no longer seems up to the challenge of taking effective action to deal with the major problems facing the country.” The authors back up their argument with five indicators of decreased legislative productivity, including fewer bills passed by Congress, the declining percentage of bills going to conference, and even the increase in cloture votes taken to end debate on pending bills. By all measures, Congress’ capacity to legislate has taken a serious hit, giving the president an opportunity to take up the slack.

Important to keep in mind

We know Congress has cut its own resources, from technology, to support agency expertise, to staffing resources within its own offices. But, let’s remember an essential point: Congress can fix this. In fact, Congress can act alone to fix this.

In each of the instances where Carmines and Fowler highlight presidents making use of, and even expanding on, their executive authority, they often couch the action as a response to congressional inaction. For example, they write presidents have chosen to use executive authorities because they faced a “recalcitrant and uncooperative Congress,” or a Congress that “has become ideologically bifurcated and unwilling to compromise,” or a Congress that “lacks the capacity and perhaps the will to play a coequal role.”

And that’s the point. The policy vacuums filled by executive actions only exist because Congress creates them.

When we talk about legislative capacity we should be aware of the likelihood that the current environment exists because enough members of Congress want it to exist. Legislating is hard; there are uncertain outcomes, unintended consequences, and often politically dangerous consequences given that bipartisan compromise is almost always necessary for bills to be signed into law. Many members have made the calculation that it is politically advantageous to let the president lead.

Congress can curb the use of executive action by taking action themselves, but they have to want to. Though Congress can and should increase their own institutional capacity via hiring more, and better compensating staff, the will to take back legislative superiority must come first. As R Street Governance Senior Fellow James Wallner argues, and as you will read in much of his upcoming work, active congressional participation is best thought of as “the politics of effort.” And as Carmines and Fowler conclude, the executive, in the absence of effort from the legislature, will not hesitate to take and expand on his authorities to implement his policy preferences.


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