Congress in Search of Itself

From Law & Liberty:

Christopher DeMuth had an interesting take on the election and its impact on our national institutions. In an essay for the Wall Street Journal, he wrote of the present inability of the political branches of government to function in a manner compatible with a national public good. Analyzing that failure, he pointed to what he believes is “a central purpose of the American scheme of checks and balances,” namely:

to draw out the distinctive strengths of the two political branches, executive and the legislature, while containing their distinctive weaknesses. The scheme has not been working well of late. The consequences are unbridled executive growth into every cranny of commerce and society, and a bystander Congress. We have lapsed into autopilot government, rife with corruption and seemingly immune to incremental electoral correction.

These pathologies were “a significant cause of the Trumpian political earthquake.” Nonetheless, DeMuth insists that Trump’s victory and the Republicans’ sweep in November “set the stage for a constitutional revival.” Unlike many observers, he is optimistic about the possibility that this election can reanimate the proper working of the separation of powers.

DeMuth pins his hopes on Congress as the branch of government that is likely to reestablish its institutional and constitutional purpose. Its current political malady is that its members have more and more

acted out of loyalty to party rather than to Congress as an independent constitutional branch. They support or obstruct administration initiatives along partisan lines, and when in support they receive fundraising and bureaucratic favors from the president in return.

Thus has “our scheme of separated powers” been “supplanted by party solidarity between presidents and their congressional co-partisans.”

In other words, the institutions are held hostage by a partisanship that has undermined the separation of powers. DeMuth argues that now, however, we may see a revival of the original understanding of the separation of powers. Congress “is bound to recover and assert many of its long-neglected legislative prerogatives.”

The new President and Congress are “poised to revive constitutional practices in their own branches,” one of them being “results-oriented policy making—so-called transactional politics—an approximation of what the Founders meant by ‘deliberation.’” Another, checks and balances, is “vigorous policy competition between the executive branch and Congress.” Both have “fallen into disuse in what had seemed, until now, to be a continuing downward spiral of dysfunctional government.”

I hope DeMuth is right, and the separation of powers can once again become the primary defender of constitutional government. But, it will not be easy to accomplish.

No doubt Democrats and Republicans alike will defend the partisan interests of their offices as they have come to be understood and incorporated into the Washington establishment. But, the question remains, what establishes the ground of partisanship in Washington? Are those political offices still understood in terms of their institutional purpose? Does the Constitution impose any limits on the powers of either Congress or the presidency, or is partisanship in Washington now understood on a ground established by the modern administrative state?

Read more at http://www.libertylawsite.org/liberty-forum/congress-in-search-of-itself/