Congress does not work for the President. Congressional staff do not work for the President (let’s set aside the detail problem for now). Just as Congress should not endeavor to destroy the President, neither should it seek to protect him. It is not Congress’s duty to clear a path for the President or to help him deliver on presidential campaign promises. It is, rather, the responsibility of Congress to check the President and to assert its own institutional prerogatives, using the limited tools that the Constitution has afforded it. Unfortunately, loyalty to the president or to a political Party has usurped what should be the Senator or Representative’s ultimately loyalties: the legislative branch they serve, and, chiefly, the Constitution.
The entire enterprise of congressional oversight and investigation of the executive branch depends upon accepting the premise of institutional defense. Senators and Representatives must accept that Congress must gather facts and evidence from the President and his subordinates in order for Congress to fulfill its constitutional role in the separation of powers. That is, congressional oversight and investigation of the executive depend upon a recognition that the institutional interests of Congress are paramount to any loyalties owed to the President or to the Member’s political Party.
When congressional oversight and investigation are viewed merely as extensions of Party politics and political campaigning, however, oversight and investigation become meaningless as legislative prerogatives. Congress consequently becomes weakened institutionally. While there are certainly important bipartisan exceptions, Members of both Parties, over time, have too often either abused or ignored their responsibilities to conduct effective and meaningful oversight and investigation in aid of Congress’s constitutional functions, instead serving as blockers for the president during the opposition’s pass-rush.
Madison, in Federalist 51, described legislative power as the predominant authority in a republic. He explained that this requires dividing legislative authority (into distinct bodies) and fortifying the executive (as with a veto). Hamilton, too, acknowledged in Federalist 73 the “superior weight and influence of the legislative body in a free government.” (Hamilton, in fact, spent considerable time in The Federalist defending the veto, worrying about the accumulation of legislative power, and explaining how the executive could defend itself against the legislature, even noting the “hazard to the executive in a trial of strength with that body.” How quaint.) And the Supreme Court has consistently recognized that the power to investigate is a function of Congress’s power to legislate. But modern politics have changed the way the institution operates, the way it is perceived, and the way the executive relates to it.
The over-sized modern presidency has far greater national stature than even the most high-profile Senator or Representative, and exerts tremendous influence over individual Members, influence that enables the President to dictate the content of national legislation and, often, the path of legislative oversight. For its part, the modern Congress has contributed to the weakening of its place in the constitutional system. The “dysfunction” of Congress is a subject well-covered in the literature, and although it is likely the case that many Democrats and Republicans privately enjoy cordial relationships, that privately held goodwill rarely manifests itself in the day-to-day public work of the institution. The end result is that the venerable institution of Congress appears to be a mere wing of each Party’s national political infrastructure. And when the majority in either chamber shares the President’s Party, that chamber’s majority appears to be transformed into a mere clerk of the executive. This persistent quiescence with the executive further weakens the institution and minimizes its public stature.
But Congress can, at long last, fight back. Oversight and investigation offer a good place to start, because this is an area in which Members from different parties can coalesce in defense of institutional interests. Congress can also staff up, and increase the budget for congressional staff, so that Congress can compete with the other branches (especially the executive branch) in securing and keeping highly-qualified professionals. Via our friends at Leg Branch, this recent piece in the Washington Post explains some of the difficulties.
The current controversies have given the Congress the opportunity to revitalize itself, to assert its institutional independence from the President and the dominant Parties. If it does not (and there are signs that many individual Members are not interested in doing so), it will remain feckless and weak. Madison and Hamilton were right to worry about the legislature’s ability to absorb the powers of the other departments. The President, as Hamilton argued, should have tools for his defense. But the accumulation of power into the executive is no better than accumulation in the Congress. And Hamilton properly explained in No. 73 that the partitioning of power among the branches also teaches us that the branches should be independent. Congress does not work for the President — and its Members should not be satisfied with perpetuating the appearance that it does.