No, getting rid of Congress is not a clever idea

Congressional majorities and President Donald Trump disagreed about how much money ought to be used to extend barriers running along our nation’s southern border. Their disagreement led to a partial government shutdown. That ended when Trump signed a spending bill with $1.375 billion allocated for border barriers. But Trump does not plan to settle for that amount. Instead he plans to spend some $8 billion. It sounds like the negotiations were just some strange sideshow, then. Indeed, maybe it’s time to stop pretending that Congress matters at all—and just get rid of the damn place altogether.

So asserts Washington Post columnist Catherine Rampell, with some unclear degree of sarcasm. (She is not the first to put a column like this in the Post’s opinion pages; see Harvard Law Professor Adrian Vermeule’s “Imagine there’s no Congress” from January 2016.) The frustration that provoked her to write such a piece is understandable. It’s not just on “the wall” where Congress appears to have rendered itself irrelevant. Rampell also brings up trade policy, again charging that Congress has empowered the president to do more or less whatever he likes on phony national security pretexts.

OK, so her frustration is understandable. Nevertheless, this column is just lazy.

1. How should lawmakers feel about Trump’s $8 billion? About trade?

Regarding Trump’s apparent end-run around Congress to get additional money, Rampell states unequivocally: “Federal lawmakers should have been livid at this power grab.” She suggests that the full $8 billion is an outrage.

But just which parts of it does Congress actually have a right to be angry about? Well, first, included in that amount is the $1.375 billion just approved by Congress. No outrage there. Two other pots of money that Trump will be accessing come from rather clear congressional authorizations. As Scott Anderson and Margaret Taylor helpfully lay out at Lawfare, $601 million is to come from the Department of Treasury’s forfeiture fund, which can be used thanks to a permanent indefinite appropriation from Congress. (Maybe that is a bad idea, but it is clear law.) Then $2.5 billion will be allocated under a statute Congress passed—with overwhelming bipartisan majorities—in December 2016, which authorizes fence construction in drug corridors. Anderson and Taylor explain that just $881 million has been appropriated to this end, and that it is yet unclear how the administration might transfer funds from other programs, but that means it’s not yet clear just how outrageous this part will be.

That leaves the $3.6 billion to come from the Department of Defense military construction budget, unlocked for that purpose because of the emergency declaration. This does seem to be quite bad; as many commentators have pointed out, the nature of the “emergency” here mostly seems to be that Congress doesn’t agree with the president’s priorities. It is worth getting angry about the president circumventing our first branch in such a brazen manner. That said, this episode is still less novel than some of its angriest critics are acknowledging (as Jack Goldsmith, also at Lawfare, details).

Turning briefly to trade, just how bothered should Congress be by the Trump administration’s actions? On the policy merits, that is a very live debate. One of Trump’s most vocal defenders is Sen. Sherrod Brown (D-Ohio), who is generally a forceful critic of the administration. On the process, too, there is real debate. As Clark Packard and I explained in our R Street Policy Study last November, Congress empowered the executive branch to lead on trade in large part because it had made such a hash of things in the 1920s. We argue that Congress went way too far, and that there is much to be done to recalibrate things toward Congress now. The prospects aren’t hopeless (see the next section). But, in any case, we probably don’t want to have Congress do everything on trade.

2. How are lawmakers reacting to the emergency declaration? To Trump’s trade actions?

The next problem with Rampell’s piece is that she implies that members of Congress are just taking these affronts to their constitutional authority without fighting back. But that’s just not fair.

On the wall, she is just jumping the gun. She calls out Senate Majority Leader Mitch McConnell for reversing course and supporting the emergency declaration. Fair enough. But she makes it seem like McConnell’s is the only judgment that matters. “Curiously, many [lawmakers] were not [livid],” she writes—and that little sentence makes her column flow. But she does a disservice to her readers by making it seem that this is all over. Trump’s declaration is brand new, and we don’t yet know how Congress will respond. The National Emergencies Act creates the possibility for Congress to repudiate the president, and it looks like the House of Representatives is likely to give it a run. The Senate, under Republican control, is less likely to challenge the president on this issue—but it’s a real possibility. FiveThirtyEight has helpfully compiled a record of GOP Senators’ statements on the issue, and it looks like there are quite a lot willing to fight. Let’s see just how supine Congress is, instead of presuming it dead on arrival.

On trade, she again misleads her readers. Noting that Trump “cited bogus ‘national security’ rationales to justify his overreach,” she asserts: “Yet in response, Republican lawmakers — members of a party that once embraced free trade and sounded the alarm about an ‘imperial presidency’ — have introduced legislation that would give the president even more discretion to levy tariffs without their interference.” This isn’t an outright falsehood. At the administration’s urging, Rep. Sean Duffy (R-Wisc.) has introduced a bill that would expand the president’s authorities to set U.S. tariff rates, and that bill has 25 cosponsors.

But there has been absolutely no indication that most Republicans (let alone most members of Congress, who are after all the target of the column in general) have any sympathy for this bill. Indeed, things are quite clearly trending in the opposite direction, including among Republicans. As our November paper showed, there has been a flurry of activity in Congress looking to take back power on trade. Although the 115^th Congress failed to act on any of the bills introduced, Congress’s trade power is very much a live issue in the 116^th. James Wallner and I have a new R Sheet which compares two of the most actively debated bills in the Senate, the Trade Security Act (S. 365) and Bicameral Congressional Trade Authority Act (S. 287), both of which would address the very national security question that vexes Rampell. Rather than boo-hooing about Congress’s perennial failure to take charge on trade issues, it would be great if Rampell would use her soapbox at the Post to draw attention to the very serious efforts in Congress to change the way these issues are handled.

3. What should the relationship between Congress and the president look like today?

Finally, Rampell concludes with a gesture at Congress’s dismal approval rating—11 percent in Gallup’s June 2018 report. Unifying Americans on anything that thoroughly means that Congress has at least one remarkable achievement to its name, she cracks. Ha!

Well, obviously we here at LegBranch.org spend a lot of time thinking about what has gone wrong with Congress to bring us to this pass. We agree that the relationship between Congress and the president is a special source of concern. Nevertheless, it is important not to get glib on these issues. The truth is that Congress is not likely to be all that popular with the public even when it is operating much better. The old line about politics and sausage-making has a lot of truth to it, and Americans (along with many other people) just don’t like seeing the push-and-pull dynamic of democratic political life. (See the excellent research of John Hibbing and Elizabeth Theiss-Morse if you want evidence.)

More to the point, saying exactly how Congress ought to relate to the president, and the executive branch more generally, in an age of extensive government specialization is not easy to do. If we make it seem like it ought to be very simple, we risk making the situation seem hopeless when Congress is slipping—as Rampell’s column seemingly encourages. (Perhaps she thinks she is providing a goad to action, but heaping abuse on an institution is unlikely to be the best way to encourage it to change.)

In fact, figuring out what self-government ought to look like today, and how Congress ought to facilitate it, takes some imagination. For those who are looking, there are encouraging signs that Congress wants to take up this work and transform itself into an institution that can fulfill its constitutional duties. Let’s focus on that, rather than resigning ourselves to a world in which Congress’s irrelevancy is as permanent and thoroughgoing as that of imperial Rome’s senate.