DANIEL VAUGHAN: Our government cannot last if Congress abdicates its role

April 13, 2018

Where is Congress?

Where is Congress on any issue other than last minute deals to avoid another government shutdown?

It seems they’ve all but vanished as a distinct institution trying to maintain power and push American strategy.

But I’m not criticizing Congress because they’re not passing some laws. I’m denouncing Congress because they’re refusing to fulfill their role in our constitutional order.

Congress is meant to represent the will of the people as a legislative body covering diverse neighborhoods, boroughs, and states. The American Founding Fathers never believed they could stop human nature, but they believed they could check human nature’s drive for power.

In Federalist 10, father of the constitution and former U.S. President James Madison believed that factions would provide the check. Everyone is in some kind of special interest group, and if everyone is always fighting, no single group can gain a monopoly on power.

If one faction, or tribe of people, rose up to take power, another would rise to check it, according to Madison, who wrote:

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

The venue through which these factions would end up fighting their legislative battles would be the U.S. Congress. Madison believed that most factions would flame out in individual towns, states, and regions. And for the most part, he was right.

But what Madison presumed in his argument was that Congress would actively seek, like the executive and judicial branches, to assert and extend its power. And as long as Congress remains assertive and protective of its constitutional powers, it can help keep the other two branches in check. Unforeseen by Madison would be Congress’s necessary role in checking the fourth branch of government: the administrative state.

Current history has seen a drastically different situation: Congress has abdicated its role to the executive, judicial, and administrative state, stepping back and giving factions nowhere to fight or debate legislative actions. You’re more likely to see significant “legislative change” happen through the judicial branch, executive order, or some change in administrative law due to a new political appointee than for Congress to step in and pass a law.

Sen. Ben Sasse (R-NE), in a recent interview on Jonah Goldberg’s podcast, said one of the first things he learned about Congress was that no one wanted to do anything.

He interviewed staffers from both the George W. Bush and Barack Obama administrations who all said they were shocked how often representatives and senators would merely go to the president and ask him to do something, instead of suggesting legislation.

Conservative political commentator and radio host Erick Erickson recently posted an anonymous interview with a congressman who hates the current president, but who also has little appetite for passing any legislation.

This attitude isn’t something unique to Republicans or the Trump era either; then-Senate Majority Leader Harry Reid famously shut down the Senate during an election year to “protect” his caucus. He had a majority, but lacked the courage to do anything with it; he wanted power for power’s sake.

I suppose you can understand the paralysis of Congress on some level. Both Democrats and Republicans watched as their rivals were swept out of power after votes on the Iraq War and Obamacare. The lesson they all appeared to learn from those votes was to never vote on anything risky ever again.

The problem is that if Congress abdicates its role in our Republic, then we aren’t a balanced three-part government of competing interests. Our constitutional order has shrunk to two branches, with the executive and judicial still actively asserting their power, while Congress lets everyone else pick up its slack.

But neither of those branches, nor the administrative state, has the constitutional authority or ability to do what Congress is designed to do.

There are solutions available. One of the most unpleasant solutions is bringing back earmarks, which would allow House and Senate leadership to dangle out sweetheart deals to get legislation passed.

The GOP famously banned these after sweeping into power in the 2010 election. But congressional dysfunction predates the banishment of earmarks.

Another solution is term limits, which would force a member of Congress to actually do something with the limited time that they have available. The argument against term limits has long been that having experienced legislators help check against lousy wave elections. But when Congress appears incapable of even passing a budget, we need to consider options that return us to regular order.

Our system is designed for three co-equal branches to co-equally assert their powers and check each other. Right now we only have two functioning branches of government. We need Congress to begin reasserting its power.

And if legislators aren’t interested in doing the work of their branch, then they deserve to lose their seats.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.