At a time when the United States of America is facing significant challenges at home and abroad—challenges that require bold, bipartisan action like climate change, deficit reduction, immigration reform, and the resurgence of great power competition—Congress is nowhere to be found. The great deliberative body envisioned by the Founding Fathers has steadily declined to the point where its stagnation is not merely inconvenient, but existential. Unless Congress changes course, the great dysfunctional body will remain nothing more than the harbinger of America’s decline.
Article I of the Constitution vests all legislative power in the Congress of the United States. This legislative branch is entrusted with immense authority, including the power to collect taxes, coin money, regulate commerce with foreign nations, declare war, raise and support armies, and provide and maintain a Navy. The Congress is required to provide advice and consent to the President on treaties with foreign powers and nominations of public officials including Cabinet secretaries, federal judges, and ambassadors. When those officials, up to and including the President and Vice President, commit high crimes and misdemeanors, the Congress is entrusted with the power to impeach, convict, and remove them from office.
The Founding Fathers would be disappointed with Congress today. It has not only become more polarized, but also gridlocked and less productive. At best, this partisanship and stagnation results in the failure to do the people’s business. At worse, it represents a dereliction of duty.
Let’s look at a few examples. Article I, Sections 8 and 9 of the Constitution grant Congress the “power of the purse” or the authority to tax and spend federal funds. However, Congress regularly fails to pass appropriations bills (ie. “fund the government”) on-time and, increasingly, at all. Since the 1970s, Congress has only passed all required funding bills on-time four times. The last time the Congress did so was 1997 and the delay in passing these bills has increased from 56 days on average in 1998 to 216 days in 2017. When Congress fails to pass a funding bill on time, it passes a “Continuing Resolution” to prevent the government from shutting down by funding the federal government at the same level as the previous year for a short period of time. Sometimes, like in 2007, 2011, and 2013, Congress cannot agree on an appropriation package and passes a year-long Continuing Resolution. Worst of all, when Congress can neither pass a budget nor a Continuing Resolution, the government “shuts down.” The three largest shutdowns have occurred in recent years: a 16-day shutdown under Barak Obama, a 21-day shutdown under Bill Clinton, and most recently a 35-day shutdown under Donald Trump. These shutdowns resulted in almost 1.5 million federal workers furloughed, $7.5 billion of taxpayer money wasted, and, most importantly, delayed the delivery of critical goods and services provided by the federal government. This dysfunction cannot be what the Founders had in mind.
There are many other signs of dysfunction. Article II Section 2 of the Constitution requires Congress to give “advice and consent” in regards to Presidential appointments. Yet, as of this writing, close to 50 Trump Administration appointees have been formally nominated yet are awaiting action from the Senate. This trend is unfortunately not new and, while even more positions remain vacant due to Executive Branch inaction, the Senate has no excuse not to carry out this important duty when it can. Article I grants Congress the authority to “make all laws” which are necessary and proper. Yet Congress has enacted significantly fewer laws in the past decade than in previous decades and one-third of the laws passed by Congress are deemed “ceremonial.” Indeed, some Congressional leaders believe this to be a good thing. Senate Majority Leader Mitch McConnell calls himself the “Grim Reaper” for stalling the hundreds of bills passed by the House of Representatives while former Speaker of the House John Boehner once stated that he should “not be judged on how many new laws we create” but rather “how many laws we repeal.” Inaction, it seems, has become more than a symptom; it is now a goal.
Lastly, and highly relevant to recent developments with Iran, Congress has ceded the ability to declare war to the President. The Founding Fathers were extremely concerned about reckless foreign policy by an unchecked Executive. As a result, while Article II Section 2 authorizes the President to be the “Commander in Chief” of the U.S. armed forces, the Founders granted Congress the power to declare war, raise and support armies and a Navy, consent to treaties, and approve Cabinet officials. The Founders proved to be prescient given the recent assassination of the Iranian Revolutionary Guard Quds Force Commander Qasem Soleimani. While there is no question that Soleimani was a murderer with the blood of hundreds of American and thousands of Iraqi lives on his hands as well as a chief architect of the discord and violence across the middle east, Americans are right to be concerned with the decision making process for such a provocative move. Reportedly, Pentagon officials presented Trump with the option to kill Soleimani to make their preferred plan of action seem less extreme and were “stunned” by Trump’s decision to move forward with the strike.
The Founding Fathers would be stunned as well. The legal justification for this act comes from the Authorization for the Use of Military Force (AUMF) Against Terrorists passed by Congress in 2001 and the AUMF Against Iraq passed in 2002. These pieces of legislation granted immense powers to the President including the use of all “necessary and appropriate force” against terrorists involved in the September 11th attacks and any “associated forces.” While perhaps justified at the time, these authorizations have been interpreted to justify use of military force against many other terrorist organizations, serving as a blank check for military force across the middle east, Asia, and Africa. Now, the Trump Administration has used these AUMFs to justify the political assassination of an Iranian leader, a decision in which apparently Congress was not consulted. Congress is meant to be a co-equal branch of government. But its dereliction of duty in regards to authorizing military force suggests that it does not want to be.
The American people are fed up with Congress. In the past decade, Congress has maintained an impressively low approval rating of 20-25%. This is lower than the Presidential approval rating by 20 points as well as most other political institutions such as the military, the Supreme Court, and the media. At times, Congress has polled less popular than root canals, head lice, cockroaches, and Brussels sprouts. Approval of Republicans and Democrats in Congress by voters in their own party stands at only about 65%. The people simply do not approve of Congressional dysfunction. And for good reason.
In real terms, this ends up mattering when Congress, due to its polarization, gridlock, and the attendant mistrust given to the institution by the American people, fails to do the things that only Congress can do: the powers specifically outlined in the Constitution—creating legislation to tax and spend, providing for the national defense, consenting to federal officials and, if necessary, removing them from office.
That last, sacred power—impeachment—is of particular importance today. Our Founders did not take this responsibility lightly. Alexander Hamilton once wrote: “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation” to preserve the necessary impartiality for impeachment. Hamilton and the other Founding Fathers would be aghast at the state of Congress today. In the coming weeks, the Senate trial over the impeachment of President Donald Trump will begin. One hundred Senators will take an oath to “do impartial justice according to the Constitution and laws,” but one can count the number of Senators who have not already made up their mind on one or two hands. Majority Leader McConnell has admitted to coordinating with the Trump White House and may of the 2020 Democratic Senator-candidates have supported impeachment for a year now and will undoubtedly vote for conviction and removal. Impeachment is necessarily political. But it does not need to be so partisan.
Faith in Congress, the Constitution, and the rule of law at this most critical time now rests with just a handful of moderate Republican Senators—Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Nebraska), Cory Gardner (Colorado), Alexander Lamar (Tennessee)—as well as moderate Democrats—Joe Manchin (West Virginia), Doug Jones (Alabama), and Kyrsten Sinema (Arizona). The next few weeks will determine whether rational voices prevail and the Senate does its duty or if the American people get a sham trial in a kangaroo court. I am not holding my breath.
In his Pulitzer Prize winning biography, “Profiles in Course”, Senator John F. Kennedy describes the lives and legacies of eight U.S. Senators whom he felt showed courage under political pressure. Kennedy believes courage to be the most admirable of human virtues. He writes: “A man does what he must—in spite of personal consequences, in spite of obstacles and dangers and pressures—and that is the basis of all human morality.” As we head toward an impeachment trial in the Senate and escalating confrontation with Iran, it does not appear that many members of Congress today will be featured in the second edition of Profiles in Courage, to say the least.
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