Separation of Power Anxiety

by John Lawrence

The ongoing clashes between President Obama and Congress over issues like the pending Iran nuclear agreement or trade promotion authority are the kinds of inter-branch elbowing that historians and political scientists always enjoy immensely.

The uneasy relationship between the Executive and Legislative branches has a long history. In fact, the inevitability of tension is woven deeply into the very design of our system of government which distributes power amongst various branches and then allows each to trip up the others when they appear to exceed their proper role. Living with the results of a governmental system based on “separation of power” may be frustrating to most Americans, but it is downright mystifying to those not steeped in the American political tradition. When I explained the concept of checks and balances to a disbelieving class of embassy staff last year, the unanimous response was, “Well, no wonder nothing ever gets done in Washington!” Why would anyone design a system that virtually ensures chronic suspicion and conflict among segments of government that should work harmoniously?

Well, no time here for a history lesson on what the Founders thought they were doing: let’s just say it was largely intentional, we are living with the results, and the basic design seems unlikely to change. It bears reminding that this situation is anything but new, and especially common among re-elected presidents living with congressional majorities of opposite parties. Quite apart from the Watergate-related crimes, Congress was infuriated in the early 1970s by Richard Nixon’s unilateral actions in Southeast Asia and with his impoundment of appropriated funds. Ronald Reagan decided to unilaterally arm the Nicaraguan Contras without informing Congress following his huge 1984 victory, and George W. Bush hit on the dubious idea of partial privatization of Social Security early in his second term. Nor has the Congress always been the branch that has been surprised. Frustrated by decisions that ruled sweeping portions of the New Deal unconstitutional, FDR struck back by proposing his Court Packing scheme in 1937.

Congressional leaders of both parties, noting that theirs is, after all, the “first branch” of government, often assert a conviction that the power of the White House must be checked. Tip O’Neill, even before his days as Speaker challenging Reagan, noted in response to Nixon’s power grabs that “We have gained power and strength; the Congress has gained; and downtown, the Executive is on the ropes.” And Speaker Newt Gingrich, never one to downplay his appetite for power, famously declared, “The Congress in the long run can change the country more dramatically than the President. I think that’s healthy. One of my goals is to make the House the co-equal of the White House.”

Of course, the presidency has many inherent advantages in seeking to gain leverage over the Congress: there is, after all, only one President as contrasted with 535 individuals who only occasionally can assemble themselves into a unified alternative or message. The President commands access to press and the media, to send a single, clear idea, far superior to the ability of congressional leaders even in this day of constant new coverage. Moreover, the President has constitutional weapons to employ, such as the veto, which he can utilize unilaterally whereas Congress needs two-thirds of its membership to fight back successfully.

Little wonder, then, that Presidents so often try to color outside the lines and expand their power at the expense of the lumbering and often indecisive legislative branch. And that’s fine with people, including many in Congress, when they agree with the President. However, as we are witnessing currently, legislators become much more wary when they do not agree with the President on policy, and only then tend to reassert their constitutional role in certain areas. It is, however, a really bad idea to predicate the exercise of constitutional duties based on agreement or opposition to particular policies.   Power underutilized tends to be power unrecognized, and it is difficult to persuade people of the justification for what may appear to be interference rather than justifiable constitutional intervention.

The Iran negotiation is a good example. Congress cannot negotiate an agreement or a treaty, which is why there is an old saying that America can’t have 535 secretaries of state. But as one who spent many years committed to ensuring a substantive role in foreign policy for Congress, I have to say I am not troubled by Congress’ desire to take a hard look at the agreement and assess whether it makes strategic sense. Fortunately, President Obama decided to cut a quick deal with a unanimous Senate committee on the issue, but it is still worth noting that Congress is well within its rights to review complex agreements that have significant implications. Congress, after all, may have to address a host of issues emanating from this agreement down the road, including the funding of enforcement, revising sanctions, and regional military aid commitments. Better to be in on the take-off if you have responsibility for the landing.

Having won the right to conduct this review, of course, Congress now will be extremely hard pressed not to approve it since a collapse of an agreement would lay culpability for every single future Iranian nuclear overreach squarely on Congress’ doorsteps. Somewhere in the White House, a staffer is already writing the generic speech that declares that if only Congress had not mucked up the Iran agreement, “x” disaster would not have happened. This is the same “Pottery Barn” responsibility (“You break it, you own it”) Congress blundered into, and out of, when unwisely linking Department of Homeland Security funding to Obama’s withdrawal of his immigration orders.

Many of those who have argued one position on the Iran deal are simultaneously arguing the opposite point of view with respect to the trade promotion authority legislation. Trust the President on the Iran negotiations, they seem to say, but demand the right to scrutinize the trade deal that could jeopardize U.S. jobs; or, review the Iran agreement, but don’t interfere with an important trade agreement that is important for diplomatic and economic reasons.

Congress has an important and proper place in creating and reviewing national policy. In response to presidential overreach in the past, Congress enacted the War Powers Resolution and the Budget Control and Impoundment Act, both passed to interject a greater congressional role into areas usurped by the President (and both, incidentally, vetoed by President Nixon but overridden by Congress). Expanded oversight by Congress, also a 1970s post-Watergate reform, is another significant innovation for holding the Executive Branch accountable short of actual legislation.

President Obama is correct to say that if Congress disagrees with any of his many executive actions – including on education, immigration, non-discrimination or climate change – it can use its constitutional authority to pass a restrictive law, which he may veto, and which Congress can then try to override. Or Congress can go to the courts, as it unsuccessfully did in challenging Obama’s opposition to enforcement of the Defense of Marriage Act.

It is all well and good to note that Congress possesses these options to challenge presidential initiatives, but as a practical matter, exercising them is a lengthy and generally unsuccessful strategy. And while presidents can, and do, grievously misinterpret election results and excessively expand their powers, Obama uniquely has had little alternative to acting imperially due to Congress’ chronic inaction on so many areas of urgent national policy.

It goes without saying that the whole process works best when Presidents and Congresses work collaboratively rather than by stretching the limits of their constitutional authority. There are some recent signs that some Republicans in Congress are recognizing the need for using their majority to legislate instead of simply castigate, including the recent deal on Medicare costs and perhaps soon on No Child Left Behind reauthorization and the Iran review.

Congress is more than justified in insisting on an appropriate role in the making of crucial national policy rather than just reviewing the handiwork of the President after the ink is already dry. We have tragic examples of what can happen when Presidents run amok, and there is more than sufficient historic justification for each branch of government to view the other warily. Voters and critics would be wise not to base their view of the appropriateness of the use of presidential power solely on one’s agreement with what any president uses that power to do. As President Kennedy reminded us in his Inaugural Address, history is filled with accounts of “those who foolishly sought power by riding the back of the tiger [and who] ended up inside.”