The recent breakdown of COVID-19 relief legislation and President Donald Trump’s subsequent executive actions are just the latest in a long series of examples of Congress failing to act and a president stepping in to fill the void. This is not how our government should work. The people’s representatives are supposed to write the laws, and the president is to execute them.
When James Madison teamed up with Alexander Hamilton and John Jay to defend the Constitution in the Federalist Papers, he warned that the “legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” The framers envisioned “energy in the executive” as a ballast against congressional overreach. They likely would not recognize our current state of affairs.
Ironically, while this inaction is driven by jockeying for power among congressional Democrats and Republicans, in the end, only the presidency gains the advantage. And it’s been happening since well before President Trump took office.
“If Congress won’t act, I will” was a common theme from President Barack Obama. In one example, decades of congressional inaction on immigration reform opened the door for him to rewrite our immigration system with the Deferred Action for Childhood Arrivals program. President Obama would repeat the formula, as presidents before him have, on climate and energy policy, firearms safety, education, health care and a host of other important policy issues.
President Obama followed in the steps of many of his predecessors. President George W. Bush discounted parts of hundreds of statutes Congress passed, on everything from the military to affirmative action to whistleblower protections, and Congress rarely challenged him. Presidents Bill Clinton and Ronald Reagan laid much of the groundwork for their successors by greatly expanding the president’s influence and control over the regulatory process and executive branch departments.
President Trump has similarly seized upon congressional dysfunction to justify a wide range of executive actions. Immigration policy remains at a standstill, and the president has filled the vacuum by dispatching troops to the U.S.-Mexico border and repurposed funds from Congress to build a wall.
Most recently, as congressional negotiations broke down over a fourth round of relief legislation to respond to the COVID-19 pandemic and economic fallout, President Trump crafted a response of his own. He issued an executive order and three memoranda directing departments to carry certain activities. All have raised questions with regard to constitutionality and implementation, but Congress remains idle. It is no wonder he felt confident in stating, “Then, I have an Article II, where I have a right to do what I want as president.”
Why does Congress default to disagreement and inaction rather than the hard work of consensus building and legislating?
We currently live in a period of dynamic electoral competition between Republicans and Democrats, as political scientist Frances Lee has shown. Since the 1990s, both parties have demonstrated they can win the White House and control of the House and Senate. Indeed, partisan leadership of all three has seesawed. In such an environment, there is little incentive for those in Congress to compromise and potentially hand the other party — or a primary challenger of their own — a winning message for the next election cycle.
There is no lack of opportunity to build coalitions that can negotiate and pass legislation. In fact, Congress demonstrated with the first three COVID-19 relief bills that it can do so swiftly. Yet as the 2020 elections near, suddenly agreement is nowhere to be found. Congressional leaders are already eyeing 2021 and the next Congress to protect a potentially endangered Senate majority and to expand the number of Democrats in both chambers. All the while, President Trump has tested and expanded the powers of the presidency.
Some in Congress recognize the situation for what it is. Sen. Mike Lee, R-Utah, years ago formed an “Article I” network of legislators focused on “congressional rehabilitation.” Reps. Derek Kilmer, D-Wash., and Tom Graves, R-Ga., have led the House Modernization of Congress Committee to examine many of these issues and will hopefully report recommendations soon. And House Rules Chairman Jim McGovern, D-Mass., and ranking member Tom Cole, R-Okla., held a hearing earlier this year on restoring Congress’ authorities. While these efforts are hopeful, more in Congress need to follow their lead.
This is not a call for more civility, bipartisan agreement or even a heightened sense of nation over party — though those are sorely needed. Rather, Congress must reassert its fundamental purpose and responsibility to establish a durable policy framework to guide our nation. Neither the presidency nor the courts were designed or empowered to fulfill this basic function of governance. If Congress allows itself to be defined by stalemate, the branches will be co-equals on paper alone.
Tom Daschle, a South Dakota Democrat, is a former Senate majority leader and the founder and CEO of the Daschle Group.
Trent Lott, a Mississippi Republican, is a former Senate majority leader and a senior partner at Crossroads Strategies.
Both served as co-chairs of the Bipartisan Policy Center’s Commission on Political Reform.