In other cases, Congress does more than stand by; it eagerly cedes to presidents some of its power to make laws. For members of Congress, the appeal of this tactic is that they can take credit for addressing an issue (“we gave the president the authority to solve this problem”) without having to take responsibility for the costs of the solution (“we didn’t tell him to do it this way!”).
This style of governance tends to turn legislators into commentators or performers, as you may have noticed if you watch cable news. It reduces their incentive to make deals. If they’re in the president’s party, they can count on him to impose the policies they prefer. If they’re in the opposition, they don’t get their way but also face no pressure to make any concessions. Activist groups know to devote their attention to the White House instead of Congress.
The congressional flight from accountability might seem to have only upside for the executive branch. But it subverts the purpose of that branch. Alexander Hamilton’s argument for an energetic executive rested in part on its being “essential to the steady administration of the laws.” As it stands now, the laws zig and zag when the occupant of the White House changes.
In the past few weeks, however, Congress has taken one-and-a-half steps to reclaim power. Bipartisan majorities of both houses of Congress have voted to end the pandemic emergency. The Senate has voted, also with support from both parties, to repeal the authorizations of military force in Iraq that Congress enacted in 1991 and 2002.
These are extraordinarily modest steps. Before Congress voted on the pandemic bill, the Biden administration had said the emergency would end on May 11. And even if the House votes to repeal the Iraq resolutions, presidents will still be able to rely on a separate authorization of force that Congress passed days after the attacks of Sept. 11, 2001.
Even though the text of that 2001 authorization concerned only those who attacked the United States or aided the attackers, it has been expansively interpreted so that it covers entities that did not even exist at that time, such as the Islamic State. Supporters of the Iraq-repeal bills therefore say — correctly, if dispiritingly — that the termination will not actually force the president to modify any deployments.
The best case for these bills is that passing them would begin to rebuild atrophied congressional muscles. Congress could then move on to heavier lifts, such as updating the 2001 authorization of force. Revisiting some of the other 41 national emergencies that presidents have declared, and that have not been rescinded, should also be on the agenda. So should limiting the presidential power to declare such emergencies. Future emergencies should, for example, have time limits that can be extended only if Congress so votes.
Congress should also pare back the president’s ability to raise trade barriers. In 1962, it gave presidents the power to impose tariffs for national security reasons. President Donald Trump exploited that power to levy tariffs on steel and aluminum (even though the Defense Department suggested there was no need for them). President Biden has restructured but still kept these barriers. Whether this policy should be retained, scrapped or modified ought to be a congressional decision.
Before Congress takes up any of this business, though, House Speaker Kevin McCarthy (R-Calif.) will need to let the Iraq legislation through. Perhaps over time Congress can even start acting as what it is: the first branch of government established by the Constitution.
