Six ways Congress can curb a runaway president
Now Trump is in the Oval Office, and has shown no sign of taking his foot off the pedal. Since his stunning Nov. 16 victory, he has browbeat Fortune 500 companies by name, threatened China, and ignored calls from government ethicists to let go of his business empire.
His operating style has created newfound worries in Washington that as the steamroller keeps going, the new president will make huge and possibly harmful changes on a wide range of issues, from international diplomacy to immigration to health care, without any public check on his actions.
There’s plenty of reason for concern. In our system, the executive acts and Congress reacts. Presidents far more respectful of the Constitution than Trump have used this first-mover advantage to make new policy through executive orders and regulations, and to inject America into international conflicts. Harry Truman seized steel mills in the name of national security and Richard Nixon put troops in Laos secretly. When Republicans frustrated Barack Obama, the president announced, “I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” All too often, Congress is left spluttering in protest, and any pushback comes from the Supreme Court. (Both Truman’s steel seizure and Obama’s immigration action were halted by the judiciary.)
In all this, Congress – an often fractious collection of 535 individuals – finds itself scrambling after the fact to exert some kind of check on the president. It wasn’t designed to work that way. The Founders intended Congress as the most powerful branch, making the laws that constrained the president, and passing laws that funded his plans—or didn’t. But over the past century, as the White House has accumulated power, Congress has been giving it away.
Today, with anxiety about Trump high among both Democrats and constitutional conservatives, there’s a fresh opportunity for Congress to resume its rightful place as the First Branch with some simple, yet powerful, actions. Here are six ways Congress can assert its authority and check President Trump from overreaching.
- Leverage the nominations process. Typically, the Senate takes up a new president’s cabinet appointees and approves them promptly. But nothing in the Constitution obliges such deference. Indeed, the very first Congress gave President George Washington fits when it rejected Benjamin Fishbourn. Washington nominated him in August 1789 to serve as a naval officer at the port of Savannah. Sen. James Gunn of Georgia had a beef with this choice, and that was that.
These days, the Senate regularly refuses to give lower tier executive branch nominees hearings or votes. Senators also slap holds on nominees to extract concessions from the president—often on utterly unrelated matters. Higher-level appointees also have been left in limbo. Loretta Lynch, Obama’s final attorney general, waited more than half a year before getting approved to head the Department of Justice. Merrick Garland was nominated for the Supreme Court last March and never even received a hearing.
In the first few days and weeks of the Trump administration, senators will have unique power to influence Trump’s agenda because the new White House will want rapid confirmation of dozens of top nominees. Most of these will take place out of the spotlight, after the headline-grabbing hearings for Cabinet appointees. As they do, the GOP Senate can extract policy concessions from Trump in exchange for their aye votes. And Trump will need almost every single vote: Republicans have just 52 seats in the Senate, meaning just three defections will doom his picks, assuming the Democrats all vote nay. Senators like Ben Sasse of Nebraska, Mike Lee of Utah, Jeff Flake of Arizona, Susan Collins of Maine, Rand Paul of Kentucky and John McCain of Arizona have proven more than willing to buck a president and their party. Ted Cruz and Marco Rubio might see nominations votes as an opportunity for payback for the trashing Trump gave them in the primaries.
Trump will have a further incentive to cooperate with holdout senators because any delay will leave him at the mercy of—gasp—Obama administration holdovers and civil servants, who are some of the very people Trump has blamed for ruining America. Once Trump’s team is in place, he will have less need to work with Congress, so Republican senators should think carefully before rubber-stamping his nominees.
- Clip the executive branch’s regulatory power. Congress enacts 50 or sosignificant laws each year. Executive branch regulatory agencies issue a few thousand mini-laws—also known as regulations—each year, about 80 to 100 of which have effects of $100 million or more. The total corpus of regulations is almost 180,000 pages, and reflects the immense shift of lawmaking power from the legislature to the executive.
Trump ran on promises to slash regulation—which, in effect, means he wants to reduce the executive branch’s power. Congress can easily oblige him by passing statutes to curb agencies’ authority to issue regulations and cull the current heap of executive-made rules. Two leading bills to achieve these objectives are the Regulations from the Executive in Need of Scrutiny Act (REINS Act), introduced by Rep. Todd Young, R-Ind., and the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act (SCRUB Act), from Rep. Jason Smith, R-Mo.
The REINS Act would require congressional approval of the most significant regulations—those having $100 million or more of an effect on the economy. The idea of legislative pre-review of regulations is not novel. Connecticut, for example, has a Legislative Regulation Review Committee that approves regulations before they take effect. The House has passed the REINS Act in each of the past three Congresses. It will be tougher sledding in the Senate, but Majority Leader Mitch McConnell might get eight Democrats on board who are terrified at Trump’s ability to unilaterally change policy.
The SCRUB Act would appoint a bipartisan BRAC-type commission to identify obsolete, anachronistic, duplicative and ineffective rules. Then Congress would vote on whether to retain or eliminate these rules. It’s a politically palatable process to build bipartisan support to target unnecessary regulations, an exercise government agencies are all too hesitant to undertake. The bill also would slow the aggregation of rules over time by mandating 10-year sunsets for newly issued regulations and requiring agencies to cut rules when they issue new ones.
- Staff up the legislative branch. For the past century, the executive branch has grown and grown. In 1900, there were eight federal departments and 230,000 employees, 135,000 of whom worked for the Post Office Department. Presently, our national government has 4.1 million civilian and active military employees and a budget of $4 trillion per year. There are nearly 120 executive agencies, which does not include the 60 other “independent” entities, like the Federal Communications Commission.
Overseeing and controlling such a vast and sprawling entity is unbelievably challenging, and Congress has made its work tougher by downsizing the legislative branch over the past 40 years. Congressional staff has declined, as has the corps of nonpartisan experts who help them. In 1995, Congress abolished the nerdy Office of Technology Assessment, which advised Congress on science and technology policy, and has shrunk the Government Accountability Office and Congressional Research Service.
The Constitution gives Congress full power over how it conducts its work and how much it funds itself. Understandably, Congress is hesitant to be seen by the public as larding its offices with political hacks and groveling minions. But the legislature can strengthen itself vis-a-vis Trump by adding more oversight staff. That means hiring more civil servant experts at CRS and GAO, and reviving the OTA. Congress could help itself further by establishing a new Congressional Regulatory Office, which helps legislators understand new regulations, which tend to be very complex, and push agencies to regulate more modestly. Congress may think it is saving the taxpayers money by tightening its own meager belt. But without adequate resources, Congress can’t conduct careful oversight over the Trump administration and prevent costly policy boondoggles and debacles.
- Clamp down on executive branch propaganda. Presidential propagandizing has been going on since the earliest days of the republic. Radio, television, and now the internet have expanded the power of administrations to speak directly to the public to persuade it. Presidents have tended to win the battle for public support, reports Mordecai Lee, a professor at the University of Wisconsin-Milwaukee,because the executive branch can speak with one voice. Congress, inevitably, is a cacophony. Congress did enact a couple of toothless laws during Woodrow Wilson’s time in office to curb executive branch communications to the public, but has done little since.
Today, that’s a real problem. The federal government spends more than $1 billion each year communicating with the public. Usually, the information is useful and objective, but recent presidents have proven more than happy to spin the public to get its support. Obama’s Environmental Protection Agency, to cite just one example, was caught engaging in a “covert propaganda” campaign to foment public support for a new regulation. George W. Bush had his share of propaganda scandals, as did Bill Clinton. Now comes Trump, who has proven a genius at deploying Twitter to set the terms of public debate. And he will have Steve Bannon, the former head of Breitbart, helping him craft the entire executive branch’s messaging.
To have any chance to survive a Trump communications blitz Congress will need to clamp down on agencies’ communications. Congress can send to Trump’s desk a law stating the agencies’ public communications must be objective and balanced in tone and are not intended to “sell” public policy. This puts him in a difficult situation. If he vetoes it to preserve his bully pulpit, he will reveal that administration communications are hopelessly politicized and lose legitimacy. Or he can sign it into law and adjust to the new reality.
Congress also can direct the GAO and inspectors general to annually audit agencies’ public communications to ensure they are not propagandistic. Agency communications spending data should be made available to the public so that journalists and good government groups can crowdsource oversight. If public funds are found to have been used for propaganda, the Executive office’s budget should be docked an equivalent amount in spending authority.
- Take back some power over the purse. Article I gives Congress full power over the collection and expenditure of public funds. The president has no independent spending or taxing authority absent congressional authorization, and must come to Congress annually with hat in hand.
Yet, Congress has been extraordinarily deferential to the executive branch, most conspicuously by authorizing executive agencies to collect and spend funds with little congressional direction. Last year, these fees, fines and collections amounted to $516 billion, or one-seventh of the total budget, which is not going through the annual appropriations process. That is almost equal to what the nation spends on national defense. The high tide of this give-away of congressional spending power came with Dodd-Frank. It funds the Consumer Finance Protection Bureau (CFPB) with money from the Federal Reserve (a quasi-governmental entity). The Bureau also can fine financial service providers and then give the money to private parties operating “consumer education” and “financial literacy” programs. Congress has no say over the use of such public funds.
The legislature can assert some control over Trump’s freedom to spend by directing agencies to turn more of the money over to the Treasury, where it must sit until Congress re-appropriates it. Legislation introduced last Congress by Rep. Gary Palmer, R-Ala., would do just this, but Congress would be wise to first map out which agencies are spending what and why, and decide which agencies should have their spending authority curbed. (Remarkably, Congress is largely unaware which agencies are collecting what fees and fines and for what purposes, as a House Oversight and Government Reform subcommittee hearing recently demonstrated.)
- Make clear what is an impeachable offense. Impeachment is a great congressional power, one that truly demonstrates legislative supremacy over the executive (and the judiciary for that matter). The Constitution, however, is not especially clear as to what are impeachable offenses (“treason, bribery, and other high crimes and misdemeanors”). This vagueness means presidents have little reason to fear they can be called to account for their actions, and it permits legislators to weasel out of holding a president accountable.
Congress can draw clear, public lines in the sand as to what is an impeachable offense by adopting a resolution that states what it considers an impeachable offense. One proposal, introduced early in 2015 by Rep. Ted Yoho, R-Fla., is an example of this sort of legislative pact. It simply lists impeachable offenses, such as “initiating war without express congressional authorization” and “failing to take care that the laws be faithfully executed through signing statements or systematic policies of nonenforcement.” Passing a resolution of this sort puts Congress publicly on the hook to consider impeachment when a president crosses the line. Best of all, the resolution need not be signed by the president.
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