The American republic owes its longevity to the uniqueness of its revolution. Unlike almost every subsequent revolution, that of the Founders was not motivated by an interest in perfecting mankind’s inherent flaws. Rather, they fashioned a government that saw humanity as it was—imperfect—and they sought to constrain its worst impulses. “Ambition must be made to counteract ambition,” read a prescient admonition in Federalist 51. “If men were angels, no government would be necessary.” The constitutional conventioneers, therefore, devised a system in which those who desire the accumulation of power would compete against other similarly motivated power centers. The Founders could not have envisioned the present circumstances. It seems that the most important branch of the federal government—the legislature—doesn’t much care for the responsibility of governing. Indeed, Congress appears eager to give their authority away.
Amid the renewed debate over gun laws ignited by the massacre in Florida last week, the administration reversed itself. On Tuesday, President Donald Trump issued a memorandum directing his Justice Department to ban “bump stocks” and similar firearm accessories “that turn legal weapons into machine guns.” This was a shock considering that the Bureau of Alcohol, Tobacco, and Firearms had repeatedly claimed that it had no legal authority to take action on such devices.
In the aftermath of the attack on concert-goers in Las Vegas, both Republican and Democratic lawmakers in Washington insisted that it would take an act of Congress to regulate such devices, and they intended to act quickly to do just that. But nothing happened. There has not been much protest from Congress over what seems like a clear abuse of executive authority by Trump. If the administration does go through with a ban absent any clear statutory authority, there will surely be a lawsuit challenging the move. Congress seems content to let the judicial branch handle things from here.
The president’s unilateral declaration of statutory authority to do something the ATF insisted it could not bodes ill for a negotiated compromise that would preserve the status of Deferred Action for Childhood Arrivals (DACA) recipients. In September of last year, Attorney General Jeff Sessions declared his intention to sunset an Obama-era executive order that provided legal status to the children of illegal immigrants who were brought into the U.S. as minors. Because the program exceeded the executive branch’s constitutional authority, the government would no longer accept DACA applications, and the program would expire on March 5 unless Congress made it permanent.
But the courts intervened, again, and compelled the administration to resume accepting applications from aspiring DACA beneficiaries. Now March 5 may not really be a hard and fast deadline at all; the zombie program will lumber along on its court-provided inertia. “We think this deadline’s an important deadline,” House Speaker Paul Ryan said last week. “Obviously with the court ruling, it’s not as important as it was before, given the court rulings.” Perversely, the prospect of this unconstitutional program continuing without legal sanction is a source of relief for the GOP. Republicans don’t want to take a vote to ratify an Obama-era program that their constituents dislike but that is wildly popular with most of the rest of the country. The chance to punt this issue away is deliverance.
The Founders would probably have been perplexed by this condition. Not only has Congress ceded its constitutional authority to a competing power center, it has also deferred to the judiciary in an unsound manner. Quoted at length in Federalist 47, Montesquieu wrote that, “there is no liberty if the power of judging be not separated from the legislative and executive powers.” Conservative Republicans have an almost instinctual aversion toward an activist judiciary, but they appear to have subordinated that instinct to other, more rewarding impulses.
What of the Congress’ central duties: namely, the power to craft budgets and wage war? These, too, are burdens that have been sloughed off.
Since the passage of the 1974 Congressional Budget Act, Congress has ratified an annual budget bill on time and with all required appropriations only four times, the last of which occurred more than 20 years ago. In 2015, Congress passed the first budget it had produced since 2009, and it has been relying on “continuing resolutions” ever since. Those “CRs” have limited authority. They can keep the lights on for a whole year or just a couple of hours. Combined with the irritating regularity with which Congress is confronted with the necessity of a debt-ceiling hike, this all makes for messy politics. Better to do what Congress just did: pass a hybrid spending bill and debt-ceiling hike that balloons the federal debt to well over 100 percent of GDP. The chief selling point for this package seems to have been the fact that Congress can put off another shutdown showdown for two years.
This week, the White House sent notice to Congress insisting that it needs no new legal authority to maintain deployments of U.S. forces in Syria and Iraq for the indefinite future, despite the fact that much of the territory it occupies has been cleared of ISIS insurgents. It is hard to imagine a more flagrant affront to congressional authority. Like the Obama White House, the Trump White House has insisted that it needed no new legal authority to deploy in Syria to combat ISIS when the 2001 authorization to use force against al-Qaeda remains operative. That flimsy logic disappeared with the ISIS threat.
Today, U.S. forces are being gradually augmented in a sovereign country over the objections of the host government, with which it occasionally engages in direct combat. That’s not a deployment; it’s an invasion, and the Congress has not sanctioned it. Again, however, Congress is in no mood to have to vote on such a measure. The public is war-weary and unclear on the value of the mission in Syria, and who can blame them? No one has bothered to explain to them the stakes should the U.S. withdraw and leave strategically valuable soil to the various great powers violently competing to rule the rubble. To appease their constituents, Congress might have to vote against a measure authorizing the mission in Syria, which would imperil American national interests. Better to not vote at all.
What explains these egregious derelictions? The Founders clearly got human nature right, but they might have underestimated the ways in which the power-hungry can satisfy their ambition. For aspiring ladder-climbers in Congress, being an effective legislator is of less value than getting camera time on cable news or being able to amass a grassroots following on the speaking circuit. Freshman Congressman Matt Gaetz illustrates this phenomenon; he seems willing to say whatever inflammatory and dubious thing comes into his head, so long as it garners him some attention. When asked recently by BuzzFeed News if the congressman was concerned that he might be “gaining notoriety rather than star power,” Gaetz replied, “What’s the difference?” The Congressman proudly posted those comment to his House.gov website.
The Founders dealt with Congress in the first article of the Constitution for a reason; the legislature is the most legitimate and republican institution in our federal system. Article 1 isn’t interested in that responsibility anymore.