THE DECLINE AND FALL OF CONGRESS
By Bruce Fein*
Contrary to the Constitution’s text and separation of powers, Congress has knowingly diminished itself from an elephant to a mouse over the past century. Monarchical government scornful of the law, liberty, transparency, popular sentiments, and due process has been the result.
In flagrant violation of separation of powers, the President alone initiates war, spends money, makes treaties via executive agreements, makes laws via rulemaking, waivers, or executive orders, and appoints officers endowed with as much or more power than Cabinet members without Senate confirmation, for instance, the national security advisor.
The annual average volume of presidential legislation through rules or executive orders is 30 times greater than congressional enactments. The delegated legislative powers exercised by the President are virtually limitless unconstrained by any intelligible statutory principle. The National Emergencies Act of 1976, for instance, empowers the President to declare a “national emergency” without defining the key phrase. On February 15, 2019, the statute was invoked in Proclamation 9844 to declare a national emergency on our southern border allegedly justifying the diversion of military construction funds to build a wall. To borrow from Humpty Dumpty, a national emergency means what the President chooses it to mean—neither more nor less.
Presidential wavier authority is similar. Senator Rand Paul (R-Kentucky) has complained: “For decades now Congress has granted the President national security waivers on just about everything. The waivers are so flimsy and so open-ended, as that all he has to do is write a report and claim that it affects national security, and he can do whatever he wants. Then Congress complains because the President is doing an overreaching, and yet we give him the very power.” A good example is 22 U.S.C. 9411, empowering the President to waive sanctions against persons by declaring the waiver “vital to national security.”
Moreover, the President handcuffs congressional oversight by concocted claims of executive privilege, state secrets, or non-responsiveness to requests for information, which Congress refuses to sanction by asserting its constitutional inherent contempt power to fine or imprison. See McGrain v. Daugherty, 273 U.S. 135 (1927).
Congressional resort to lead-footed litigation predictably proves futile by making belated disclosures, if any, politically irrelevant or moot. Congressional timidity is highlighted by the disinclination of the House Select Committee on the January 6 Attack to subpoena former President Donald Trump and former Vice President Mike Pence about the criminal insurrection against the Capitol. The two have the best evidence of the crime of domestic terrorism. It is defined in 18 U.S.C. 2331 to include criminal acts dangerous to human life that appear to be intended “to influence the policy of a government by intimidation or coercion,” for example, to intimidate or coerce Vice President Pence to decline to count state-certified electoral votes in the 2020 presidential election as required by the Twelfth Amendment and the Electoral Count Act. January 6 was the greatest threat to the Constitution since the Civil War, far greater than Watergate where the House Judiciary Committee voted an article of impeachment against President Richard Nixon for disobeying four congressional subpoenas.
Additionally, Congress has ruined its capacity to operate. Legislative work has become part-time. During a typical week (excluding protracted recesses), Members devote themselves to legislative responsibilities only Tuesday-Thursday, leaving the remaining four days for fund-raising or entertainment. The number of congressional hearings has plunged. Notwithstanding the nation’s permanent state of unconstitutional, endless presidential wars since 9/11 costing $8 trillion according to the Costs of War Project at Brown University, Congress has neglected to hold serious and sustained oversight hearings as Senator J. William Fulbright did during the Vietnam War, which hastened its disastrous conclusion.
Similarly, Congress has permitted the Surveillance State disclosed by Edward Snowden or other whistleblowers to burgeon destroying the right to privacy protected by the Fourth Amendment without legislative or judicial checks.
Congress declines to attract gifted and industrious professional legislative staff capable of defending legislative prerogatives against executive usurpations with competitive salaries. The result is a constant churning of amateurs with no institutional memory and clueless of the constitutional powers and responsibilities of Congress. Significant legislation is drafted in secret by lobbyists or the executive branch. Congressional leadership starves the rank and file of funds or assistance to prevent intellectual challenges to their self-aggrandizing agendas. Congress turns a deaf ear to citizen expertise and advice by ignoring thoughtful, substantive petitions for redress of grievances explicitly protected by the First Amendment. While technology advances at warp speed raising novel dangers to civil liberties, public health, and consumer welfare, Congress refuses to re-create the Office of Technology Assessment with less money than the Pentagon spends every 60 seconds. The annual budget of the House of Representatives is less than one tenth of one percent of the expenditures of the executive branch it is responsible for funding and overseeing.
The Constitution’s separation of powers is a structural bill of rights to protect citizens from tyranny. The objective is to prevent any one political faction from dominating or oppressing others. It is achieved by diffusing power among and within branches to require a broad consensus among discrete factions demanding reflection and the Aristotelian mean for government action. Rashness is more to be feared than prudence. Look before you leap.
Congress was entrusted with the lion’s share of constitutional power. It is endowed with seventeen enumerated powers in Article I, section 8, augmented by complementary authority to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.” The “Necessary and Proper Cause,” Chief Justice John Marshall explained in McCulloch v. Maryland, 17 U.S. 316 (1819) is sweeping: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
The most significant congressional authorities are the war power and the power of the purse. The former is indispensable to preventing the President from becoming a Caesar. War is always a catastrophe for the people, liberty, and justice. In times of war, the law is silent. Everything is subordinate to claims of national security—no matter how anemic. Approximately 120,000 Japanese American were herded into racist concentration camps in World War II based on General John DeWitt’s Orwellian assertion that their espionage or sabotage was imminent because their behavior was scrupulously loyal. At present, the President plays prosecutor, judge, jury, and executioner to kill any person on the planet based on secret, unsubstantiated speculation that the targets threaten national security now or sometime in the future. Presidentially ordered assassinations are shielded from congressional or judicial review. Benjamin Franklin captured the spirit of the Declare War Clause in declaiming, “There never was a good war or a bad peace.”
Congress has kept the peace for 233 years, declaring war in but five conflicts and only in actual or perceived self-defense. But over the last century, Congress has eagerly permitted the President to initiate chronic, pointless, unconstitutional presidential wars from Korea to Vietnam to Iraq to escape responsibility for making challenging political decisions. The predictable result has been a metastasizing of presidential power. As James Madison, father of the Constitution elaborated:
“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement.”
Congress can easily recapture its war power by resolving that unconstitutional presidential wars are impeachable high crimes and misdemeanors and removing offending presidents from office as was proposed by former Congressman Walter Jones (R-N.C.) and former Congresswoman Tulsi Gabbard (D-Hawaii).
In Federalist 58, Mr Madison praised the power of the purse as a cornerstone of separation of powers: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Many decades ago, Congress wielded the power of the purse to end the Vietnam War and the C.I.A.’s covert war assisting Jonas Savimbi in Angola. As regards the latter, section 404(a) of the Arms Export Control Act of 1976 provided:
“Notwithstanding any other provision of law, no assistance of any kind may be provided for the purpose, or which would have the effect, of promoting or augmenting, directly or indirectly, the capacity of any nation, group, organization, movement, or individual to conduct military or paramilitary operations in Angola unless and until the Congress expressly authorizes such assistance by law enacted after the date of enactment of this section.”
Congress wrote an epitaph to the Vietnam War with Public Law 93-50:
“None of the funds herein appropriated under this act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other act may be expended for such purpose.”
But since at least 2012, Congress has surrendered its power of the purse to constrain disastrous executive branch misadventures abroad by creating a multi-billion-dollar Pentagon slush fund for unconstitutional presidential wars under the banner of Overseas Contingency Operations.
Congress cannot reclaim in a day what has been lost or surrendered over more than a century. But a start should include the following:
1. NGOs should offer constitutional literacy training for any candidate for the House or Senate.
2. Funding for congressional offices and staff salaries and the Congressional Research Service should be doubled or tripled to recruit talented professionals to pursue careers assisting the legislative branch.
3. Congress should work seven days a week with abbreviated breaks for holidays until the national debt (now approximating $29 trillion) is retired.
4. Power over committee assignments, chairpersons, and legislative priorities should be removed from congressional leadership to the rank and file and committee chairpersons.
5. A Joint House-Senate Committee on the Constitution should be established to vet every bill for its purpose or effect of enhancing executive power at the expense of the legislature, i.e., prepare a legislative impact statement.
To paraphrase Shakespeare, the fault lies not in the stars but with Congress itself that it has become a docile underling of a colossus in the White House.
*Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan. He is author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy and American Empire Before The Fall.