As I write this, the United States government is in the midst of the longest shutdown in the nation’s history.
A standoff between the executive and legislative branches is nothing new. In a healthy democracy, it should be expected. However, in this instance, we find ourselves in an unhealthy place for our system of government.
Policy differences are to be expected, especially when one house of the legislature is of a different party than the executive. This dispute is more fundamental than political party or policy differences. This latest round of dysfunctional government is the result of nearly 80 years of erosion and neglect of legislative constitutional responsibility.
The Founders trusted that the power of a unitarian executive would be checked by concentrating as much power as possible into a representative legislature. Legislative overreach would be balanced not only by the executive but by having two distinct houses of the legislature representing different segments of the country’s population.
Originally, the Senate was to represent not the interests of the people in their state but rather the interests of the government of their state. That is why senators were appointed by their state legislatures. When I thought about the role of a senator being akin to an ambassador of a foreign government — but in this case representing his or her state government — I fully understood the brilliance of Madison. In that way, the power of the national government would be held in check by the individual states.
Representatives of the people’s interests were delegated to the House with their shorter terms and direct election by the citizens. The farmers and yeomen of the republic could keep an eye on the wealthier classes which dominated the Senate’s members. If one looks at the composition of the legislative branch in that light, it is easier to understand why each body would be given their distinct legislative and policy role.
The House of Representatives is given the responsibility of starting the appropriations process. The Founders felt that the people’s representatives should be the ones to decide how funds are spent. The Senate, which was composed of the states’ representatives, could then take up the bills, amend the bills and, ultimately after agreement, they would go to the president for signature.
The executive’s responsibility was supposed to be one of executing the policy that the Legislative branch had passed, including appropriations that the legislature deemed fit to allocate to carry out that policy. If a disagreement arose and the Executive vetoed an appropriation, then Congress would override the veto if it felt strongly enough about the policy.
We are now faced with a legislative branch that has completely ceded its constitutional authority to the executive. This is unconscionable, regardless of political partisanship. Our system does not work unless the legislature is fully engaged and jealously protects its authority. What we see with this government shutdown is the culmination of 80 years of legislative capitulation. The very thing that prevents the United States from slipping into a dictatorship has been disregarded by an incipient political class that the Founders would never have tolerated or contemplated.
Congress needs to act as the equal to the executive and restore its constitutional authority — immediately. They must claw back the power they have given to the executive. Laws need to be written that are precise. There should be no reason for interpretation by executive agencies. Agency function is to execute the law as written. The courts can interpret if need be.
In order to do this, both houses of Congress need to act. McConnell’s refusal to allow the Senate to pass or take up laws that President Trump won’t sign is an abomination of the system. The veto and a way to override that veto is in our constitution for a reason. If the Senate feels that the president’s view is correct, then pass legislation that reflects that view and send it to the House. The Senate has a duty to act.
The Founders meant that there should be tension between the branches as well as tension between the two legislative houses. That is why they were given different tasks. We have seen what 80 years of a failure by the legislative branch has given the nation. Our policies are decided by executive fiat known as the executive order. Instead of laws and treaties guiding the nation, you have policies that are changed on the whim of one person. There is no consistency.
If you run a government by executive order, you come perilously close to becoming a dictatorship. The system was meant to be slow and deliberative. It was designed to make sure that a majority of citizens buy into any decision, law or treaty passed. Without that consensus, dictatorship follows.