Congress in eclipse as power shifts to executive branch
Fast-forward to today. A remarkable turnabout has occurred in less than a decade. Congress, for some time, has been eclipsed by President Bush, who has made himself the dominant player in Washington, despite his failure to win a majority of the popular vote in the 2000 presidential election. And Congress has also been superseded by an activist Supreme Court.
Bush's pre-eminent position is facilitated by his party's control of Congress and by the usual flow of power to the commander-in-chief in wartime. But the explanation for the shift in power also lies in the willingness of the president and other executive branch officials to take initiatives that seem to put Congress, a coequal branch under the Constitution, in a subordinate position.
Early on in his administration, for example, Bush walked away from the 1972 Antiballistic Missile Treaty, without bothering to consult Congress, in what was a precursor to other equally audacious moves in the foreign-policy arena. "The idea that Congress just sort of lets treaties expire without insisting on a vote ... shows that not only is there a sense of people being a little intimidated" by the president, Sen. Russell Feingold, D-Wis., told National Journal, "but also just a lack of understanding of the historical role that Congress has played in the checks-and-balances scheme. What Congress is failing to do, almost in every instance, it seems-it's failing to take the power that the Constitution gives it."
Following the terrorist attacks on September 11, 2001, the powers claimed by executive branch officials-and the resistance they've sometimes demonstrated to congressional oversight-have rankled lawmakers on both sides of the aisle. The administration's failure to share information on pressing national security issues "does not encourage a good amount of trust and cooperation," Sen. Chuck Hagel, R-Neb., told reporters a few weeks ago.
But Congress, for its part, exercised little review over Attorney General John D. Ashcroft's request for vast new, and in some cases unprecedented, powers to fight terrorism. "Congress is acquiescing more to the executive branch than I have seen in my 25 years in and around Capitol Hill," said Laura Murphy, Washington director of the American Civil Liberties Union, in an interview.
Critics also worry that Congress has largely taken a pass on the war in Iraq. Some lawmakers and commentators argue that since last fall, when Congress overwhelmingly approved a resolution granting Bush broad authority to pursue the war, the legislative branch has essentially opted out of the discussion. Lawmakers seemed determined this year to avoid a comprehensive debate over the merits of U.S. military action in Iraq.
"We have left the field, after the October use-of-force resolution," said Sen. Richard J. Durbin, D-Ill., who opposed the resolution. "This is the largest grant of presidential authority ever given by a Congress."
James M. Lindsay, a senior fellow in foreign-policy studies at the Brookings Institution, agreed. "The war power is a use-it-or-lose-it power. Once Congress delegates that authority to the president, its constitutional role is to sit on the sidelines," Lindsay said. "What we have learned since September 11 is that the imperial presidency may have gone into remission after Vietnam, but it didn't die."
Even before 9/11 and the war in Iraq, Bush and others in his administration had moved to vigorously protect executive branch prerogatives. Vice President Cheney, for example, refused to provide Congress with even the names of those he consulted in developing the administration's energy policy in early 2001. Cheney's stonewalling precipitated the first-ever lawsuit by the General Accounting Office against the White House.
"An overwhelming majority of Republicans and Democrats [in Congress] that I spoke with felt that the limited amount of information that we were seeking should be released to the GAO," Comptroller General David Walker told National Journal. "We had scaled back the request to such an extent that it was not intrusive, and that it involved information that the Congress and the American people had a right to know."
After a federal district court dismissed the case in December, however, the GAO decided not to appeal. Further litigation would have consumed "significant time and resources over several years," the GAO said in a Feb. 7 statement.
More recently, the White House played a remarkable role, behind the scenes, in orchestrating the Senate Republicans' selection of Sen. Bill Frist, R-Tenn., to succeed embattled Sen. Trent Lott, R-Miss., as majority leader in late December. Thomas E. Mann, a senior fellow in governance studies at the Brookings Institution, had one word for the White House's involvement: "breathtaking." Norman J. Ornstein, a resident scholar at the American Enterprise Institute, agreed: "There is almost no historical precedent for a president getting involved in any fashion in a congressional leadership battle."
Still, not everybody on Capitol Hill is troubled by Bush's assertive approach.
"This administration clearly feels that the executive branch has historic prerogatives that ought to be defended, and they are prepared to take personal heat, as Vice President Cheney did over energy policy in the GAO fight," said Sen. Jeff Sessions, R-Ala. "The president is asserting the historic prerogatives of the president that he thinks, in some ways, Clinton allowed to be eroded."
Cheney has spoken bluntly of his conviction that Congress in recent history has invaded powers within the White House's purview. "In 34 years [in Washington], I have repeatedly seen an erosion of the powers and [of] the ability of the president of the United States to do his job," Cheney said during a January 2002 interview with ABC's This Week. "We've seen it in cases like this before, where it's demanded that the presidents cough up and compromise on important principles."
"One of the things that I feel an obligation on-and I know the president does too, because we talked about it-is to pass on our offices in better shape than we found them," Cheney continued. "We are weaker today as an institution because of the unwise compromises that have been made over the last 30 or 35 years."
Despite the White House's continuing efforts to maximize its power, many public policy experts predict that after the war in Iraq is over and the nation shifts its attention back to domestic issues, Congress will reassert itself. They say that lawmakers-and not just Democrats-will more aggressively resist some of the president's legislative priorities.
It is already apparent that Bush will have to fight for his proposed $726 billion 10-year tax cut. On March 25, three Senate Republicans joined Democrats in passing an amendment to the fiscal 2004 budget resolution that would slash the new tax cuts by more than half. But administration officials remain confident that the president will get much of what he wants. They point out that the vote was only the opening salvo in what is likely to be a protracted battle before final tax legislation is enacted.
On another front, Senate Democrats have certainly not been timid in challenging Bush's nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. But although their filibuster reflects how a minority in the Senate can work its will, it is not a broad assertion of congressional prerogatives.
"That is taking place notwithstanding the contrary judgment of the Senate-meaning that if the members of the Senate voted tomorrow, more than 50 would vote to confirm him," said Chuck Cooper, who headed the Justice Department's Office of Legal Counsel in the Reagan administration. "It's not Congress flexing its muscles; it's a determined minority, using a technique unique to the Senate."
Historians and political scientists have written that power runs in cycles among the three branches of government. They point to the executive branch's strength during the 1950s and much of the `60s; that period was followed by one in which Congress reasserted itself, first in response to growing public discontent over the Vietnam War, and later after the Watergate scandal erupted and President Nixon resigned.
Today, amid war in Iraq and constant fears of terrorism at home, it is not a surprise that the public looks to the commander-in-chief, not Congress, to take the lead. "This is cyclical, and the president, right now, is up," said Ross K. Baker, a Rutgers University political science professor. "He is the individual that people are looking to. The sense of reassuring, the sense of where the nation is going, is just not within the province of Tom Daschle or Bill Frist to provide the American people."
Others agree that the balance of power is likely to shift with events. "Looking at the broad historical sweep of American history, congressional powers tend to be greatest at times of peace and prosperity. The power of the president tends to be greatest at times of economic trouble and great threats," Lindsay said. "If you move back to times of rip-roaring prosperity and the threat stays away, then power will flow to the other end of Pennsylvania Avenue, and Congress will be restored to a more prominent place. I wouldn't write the obituary for Congress yet, but don't be surprised if it is laid up in intensive care for a while."
No Blank Checks
At 85 and in his eighth Senate term, Sen. Robert C. Byrd, D-W.Va., is one of the fiercest defenders of congressional prerogatives. Since 9/11, he has repeatedly castigated his colleagues for insufficiently defending their oversight power, in the debates over enacting broad new anti-terrorism tools, over creating a massive Homeland Security Department, and over waging war in Iraq.
Byrd, the Senate's longest-serving member, will not be quieted by predictions that Congress's diminished role is just a temporary phenomenon. He is always ready to cite relevant provisions of the Constitution, a copy of which is never missing from his left breast pocket.
In February, before the war began, Byrd took to the Senate floor to decry the fact that, even as U.S. citizens face the threat of chemical or biological attack, "this chamber is silent." He scolded, "On the eve of what could possibly be a vicious terrorist attack in retaliation for our attack on Iraq, it is business as usual here in the Senate.... We are truly sleepwalking through history."
Byrd was equally plainspoken at a session with reporters at The Christian Science Monitor in January. "In the days since September 11, 2001, we have seen power shift to the executive branch," he said. "Without a Congress willing to stand up for its prerogatives, and without a public that understands the importance of equal branches of government and separation of powers, that shift will gain the speed of a downhill truck."
In recent days, Byrd has balked at Bush's request for wide discretion over how to allocate funds in the pending fiscal 2003 supplemental spending bill for the war in Iraq and homeland security. "Count me out when you ask for these additional flexibilities," Byrd told Defense Secretary Donald Rumsfeld at a March 27 Senate Appropriations Committee hearing. "Congress will respond to the needs whenever the case is made, but we can't afford to give this administration, or any other administration, a blank check.... The people have the right to know how their monies are spent and to believe that they're being spent prudently."
Such rebukes from Byrd are nothing new. But he is gaining support from others who are also increasingly concerned that some administration officials are overreaching. Take GAO chief Walker, who calls himself a student of history and is quick to point out that Congress is the branch of government "most representative of the people."
Walker declared, "In the final analysis, there is a reason that Congress was in Article I [of the Constitution] and a reason that Congress sits up on a hill, looking down at the White House. While, obviously, deference needs to be given to the executive branch in matters of foreign policy and matters of national security, and in times of war, that does not mean a blank check," he said. "It also requires active interaction and oversight by Congress."
Congress hasn't found it easy to perform its oversight role since Bush took office, however. Plenty of elbows have been thrown between lawmakers seeking information and executive branch officials resisting those requests.
Members of Congress had to issue threats to get answers about the Justice Department's implementation of the USA PATRIOT Act, the post-9/11 law that gave the government sweeping investigative powers to combat terrorism. Last year, House Judiciary Committee Chairman F. James Sensenbrenner Jr., R-Wis., became so incensed by the Justice Department's failure to respond to questions submitted by him and ranking member John Conyers Jr., D-Mich., that he told National Public Radio he was considering issuing a subpoena, a move that would have escalated the situation considerably.
Sensenbrenner called Ashcroft's Justice Department the least cooperative of any Justice Department in his 24 years on Capitol Hill. The chairman even went so far as to say that if responses to the questions were not forthcoming, Congress might allow the act to expire in 2005. "The Framers of the Constitution gave Congress the power to do oversight over the executive branch," he told NPR.
The threats worked. Justice finally provided answers last October, about four months after the questions were submitted. In an October 17 statement, Sensenbrenner said he was "satisfied" with the answers.
Senate Finance Committee Chairman Charles Grassley, R-Iowa, agreed in an interview that "getting information from the Justice Department under Ashcroft is like pulling teeth." But Grassley sees it as an institutional problem, and said it had also been difficult to get responses when Janet Reno led the department.
Grassley said he has had no problem in asserting his oversight powers with the executive branch. As for his colleagues who worry about presidential usurpation of Congress's powers, Grassley added, "It doesn't matter to me what the president thinks, unless I want to take it into consideration. He didn't elect me-the people of Iowa elected me. I am a trustee of the people, not a messenger boy for the president."
But Leahy had a far more negative, withering take on the Bush administration's actions to avoid oversight. He and some other Senate Judiciary Committee members have sent the Justice Department 28 requests for oversight information, dating back to July 2001. The department has not responded to any of them.
Ashcroft "basically ignores most of the requests, but at least I give him credit for being bipartisan-he ignores Republican requests, too," Leahy said in the interview. "And this is the man who [when he was a senator] thought he should hold up judicial nominations and everything else when the attorney general didn't give us what we wanted."
Several members of the Senate Foreign Relations Committee also reacted angrily when the administration canceled, at the last minute, testimony by the top official in charge of reconstruction and humanitarian assistance in Iraq, who was to appear at a March 11 hearing. They also were surprised to learn from that day's newspapers that the administration was seeking bids from U.S. corporations on reconstruction contracts for Iraq.
Sen. Christopher J. Dodd, D-Conn., a committee member, told reporters that he found it "outrageous" that Congress was kept in the dark while such bids were solicited. "I think the administration believes that they can get away with it, that the Congress will just not do anything about it," he said.
Hagel, another committee member, has also been miffed at the administration's dismissive attitude toward Congress. He bristled that Bush, at a March 6 press conference, had referred to Congress as "the spenders." Hagel responded sarcastically that such presidential rhetoric "certainly encourages warm feelings," according to an account in the Omaha World-Herald.
The administration's words and actions have prompted some damning assessments of its approach to Congress. "They are consumed with secrecy," Mann said. "They have cut Congress off, and there are many Republicans who have felt that the briefings that they have had on Iraq have been less informative than reading the daily newspaper."
"Congress finds itself very much boxed in," said Baker, saying that this era is akin to the period before the Civil War. Back then, he said, "the Senate was where the great debates took place. And that's where they should be taking place today, but they aren't."