Jamie Raskin, a Democrat, represents Maryland’s 8th District in the U.S. House of Representatives and serves on the Judiciary and Oversight Committees. He is an emeritus professor of constitutional law at American University’s Washington College of Law.
Constitutional crisis looms, preceded by constitutional illiteracy and confusion, which now hang like a thick fog over Washington. President Trump’s administration refuses to cooperate with any congressional investigations he disfavors, drawing a curtain over the executive branch and blockading our oversight work: His treasury secretary has declined to produce the president’s tax returns, as demanded by the House Ways and Means Committee under federal statute. His attorney general has refused to comply with a House Judiciary Committee subpoena for special counsel Robert Mueller’s unredacted report and the evidence underlying his findings, and he has ordered Justice Department official John Gore not to testify before the House Oversight and Reform Committee (without even bothering to assert a legal privilege). Trump is suing House Oversight Committee Chairman Elijah Cummings (D-Md.) for seeking documents from one of the president’s accounting firms. And the White House has directed former counsel Donald McGahn and other witnesses not to appear before Congress. “Congress shouldn’t be looking anymore,” the president-king proclaims. “This is all. It’s done.”
Oversight isn’t the only area where the president thinks he can supersede and supplant Congress. He believes he can declare a national security emergency when lawmakers reject funding for his border wall — and then reprogram money Congress has appropriated for other purposes to build the wall behind our backs. And despite the fact that his main job is to “take Care that the Laws be faithfully executed,” as the Constitution’s Article II provides, he routinely sabotages the effective administration of the Affordable Care Act (by starving recruitment efforts and promoting “junk” plans) and encourages government officials at the border to violate the law on asylum seekers. All this falls outside of his constitutional power.
Whenever the president commits a new offense against the Constitution, one of my Democratic colleagues will inevitably rise on the House or Senate floor and implore the president to remember that we are a co-equal branch of government. This is a straightforward and intuitive concept: When our kids were little, my wife and I taught them that the separation of powers is like rock-paper-scissors. Sometimes this branch ends up on top, sometimes that branch wins — but the three have equal weight. This analogy appeals to our sense of fairness, and there is a kernel of truth in the idea that each branch has its limits: Congress cannot pass laws that violate the Constitution and will be checked by the Supreme Court if it does; the president can recommend laws to Congress but cannot force their passage; and the courts interpret what the law means when there are conflicting views.
But this naive cliche is now the heart of our current troubles. Congress was never designed as, nor should it ever become, a mere “co-equal branch,” beseeching the president to share his awesome powers with us. We are the exclusive lawmaking branch of our national government and the preeminent part of it. We set the policy agenda, we write the laws, and we can impeach judges or executives who commit high crimes and misdemeanors against our institutions. As James Madison observed in the Federalist Papers, “In republican government, the legislative authority necessarily predominates.” Congress is first among equals.
The founders replaced the intertwined monarchical and theocratic forms of government that prevailed in the 18th century with representative democracy so the people could govern, which is why our Constitution begins with those three magic words: “We the People.” It then establishes Congress in the very next sentence, placing our representative institutions, “a Senate and House of Representatives,” right after the sovereign people and way ahead of everything else. The House, in which I serve, was designed as the people’s body, based on the principle of equal representation for the populations of different states and, with two-year terms, closely tethered to public sentiment. The Senate would attain a more deliberative character.
Article I, the Constitution’s first section, confers upon us “All legislative Powers” and describes our lawmaking authority in vast terms, from regulating domestic and international commerce to setting up a capital city for the seat of government to declaring war. On a day-to-day basis, our greatest tool is the power of the purse, which allows Congress, and only Congress, to appropriate money for public purposes. In funding each executive-branch agency, Congress dictates the emphasis of that agency’s work. Of course, the president can veto legislation, but we can override him. It is the president’s main task to see that laws are “faithfully executed,” not thwarted, sabotaged or violated.
Indeed, the danger of presidential abuse of office is precisely why the people’s House has the “sole Power of Impeachment” — to guarantee that we have a final instrument of self-defense against a leader who tramples the rule of law and acts like a king. (Congress can remove the president, but he cannot remove us, because we answer to the people themselves. “The people are the only legitimate fountain of power,” as Madison put it in the Federalist Papers.) And our deliberations in Congress are protected by the speech and debate clause, just as the First Amendment protects the robust debates of the people.
Trump now seeks to disable major House investigations, but our “power of inquiry” also flows straight from Article I, and the specific “power of the Congress to conduct investigations is inherent in the legislative process,” as the Supreme Court found in Watkins v. United States in 1957. “That power is broad” — broad enough to include “probes into departments of the Federal Government to expose corruption, inefficiency or waste.” As the U.S. Court of Appeals for the District of Columbia Circuit observed in 1938, “A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.”
Congressional supremacy has been tested time and again. A crucial showdown took place in 1952, when President Harry Truman directed his commerce secretary to take over the country’s steel mills. The president thought the power to keep the steel factories humming during the Korean War was self-evident and inherent in his role as commander in chief. But in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held that the president’s authority to act “must stem either from an act of Congress or the Constitution itself.” The Constitution says nothing about giving the president power to seize private property, and Congress had specifically rejected the idea of the president taking over the steel plants. The steel seizure case stands for the proposition that the president’s powers are constitutionally limited and usually reliant on congressional policymaking — a proposition refuting Trump’s claim that he can declare a national emergency to spend billions of dollars more on his fantasy border wall when Congress has soundly rejected the idea.
Ever since President George Washington expressed surprise that the first Congress would not automatically accept his plans and nominees, presidents have sought to establish both their privileged place in our constitutional firmament and a realm of executive decision-making off limits to the supervision of the other branches. They have been especially eager to resist scrutiny by the judicial branch: When Watergate special prosecutor Leon Jaworski moved to subpoena President Richard Nixon’s tapes and documents, Nixon appealed the subpoena up to the Supreme Court, which ruled against the claim of an “absolute, unqualified” executive privilege covering all presidential communications.
In other periods of American history, it was taken for granted that, as the body closest to the people, Congress provided essential direction for the national agenda. As House speaker in the early 1800s, Rep. Henry Clay of Kentucky worked out the public philosophy of the “American System,” which featured massive federal infrastructure investment and the use of a national bank to promote commerce. Before, during and after the Civil War, it was the Radical Republicans in Congress who drove the abolitionist and Reconstruction agendas, pushing President Abraham Lincoln and then President Andrew Johnson to confront the political power of the slave-master aristocracy. Democratic-controlled Congresses during the New Deal and Civil Rights eras pressed for sweeping social change. And what helped make President Lyndon Johnson one of the most effective presidents of the 20th century was that he knew how to build consensus in the Senate.
The presidency in the modern era has been inflated and aggrandized beyond anything the founders might have wished for or even recognized. The growth of the national security state after World War II gave the president a massive apparatus for practicing foreign intervention and waging unilateral, undeclared wars. Television and social media have exaggerated the natural political advantages of the branch of government defined by a single leader. Even a run of Supreme Court justices who made their careers in the White House and the Justice Department, like William Rehnquist and Antonin Scalia, have played a part in swelling executive powers, especially in the foreign policy field.
As presidential power has grown, congressional power has been eroded through a combination of legislative-branch passivity and executive-branch power grabs. Lawmakers stood by, never voting to declare war or demanding an end to hostilities, as armed conflicts like the Korean and Vietnam wars raged for years.
The current president is not the first to confuse himself with a monarch, but he has taken contempt for our lawful powers to unprecedented levels. When a president makes a blanket announcement that he won’t honor subpoenas or document requests from Congress, he isn’t only defying the separation of powers but also declaring that he’ll operate without any legislative or popular check at all.
But legislators aren’t consigned to watch the president trample our constitutional structure. This past week, the House Judiciary Committee (on which I sit) voted to hold Attorney General William Barr in contempt for ignoring our subpoena. The Republican-controlled Senate Intelligence Committee said it will compel Donald Trump Jr. to testify. Members of both parties have voted to claw back our war powers by trying to block the national security “emergency” at the border and the administration’s support for Saudi Arabia’s war in Yemen.
It’s tempting to think of the president as the main actor in the story of America, because he (or she) is a cast of one. But as the great Rep. Thaddeus Stevens reminded Americans during Reconstruction, “The sovereign power of the nation rests in Congress,” and its members stand around the president “as watchmen to enforce his obedience to the law and the Constitution.”
The three branches have different functions and different powers, and we operate in a dynamic relationship with one another. But the forward motion and energy must be provided by Congress, and Congress must protect our national values. For government to work as the Constitution’s framers intended, lawmakers must assert our proper role. And that means we must lead.
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