Congress, the first branch among equals under the Constitution, is nowhere to be found in the 2020 Harvard Law School course catalogue.
Thereby hangs a tale of appalling congressional derelictions through open-ended delegations of legislative power to the executive branch and abdications of its constitutional duties. Separation of powers has yielded to presidential supremacy. Members of the House and Senate delight in ducking accountability and heading off primary challenges by passing the buck to the White House.
The rule of law no longer constrains government. Diminishing political headwinds are all that arrest oppression and defend liberty.
Without rebuke or consequences, former President Donald Trump proclaimed on July 23, 2019, in the manner of Napoleon’s self-coronation, “Then I have Article 2, where I have the right to do anything I want as president.” That alarming boast echoed the British monarchy earmarked by the doctrine recited in Blackstone’s Commentaries, “The king…is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing.”
Congress is entrusted in the Declare War Clause, Article I, section 8, clause 11, with responsibility for taking the nation from a state of peace to war. That power stands at the summit of constitutional authorities. As Cicero observed, in times of war, the law is silent. Liberty is subservient to the flimsiest claims of national security. Think of the racist Japanese American concentration camps in World War II sustained by the United States Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944) justified by concocted fears of espionage and sabotage; or the post-9/11 warrantless, dragnet interceptions of all electronic communications by the National Security Agency that have failed to thwart even one act of terrorism while emasculating the Fourth Amendment’s protection of privacy.
For more than seventy years since at least the Korean War, the congressional war power has migrated to the White House through congressional acquiescence or limitless, unconstitutional delegations authorizing presidents to initiate war on their say-so alone, for example, the 1964 Gulf of Tonkin Resolution or the 2001 and 2002 Authorizations to Use Military Force. Recently, President Joe Biden asserted unilateral authority to defend Taiwan from aggression by the People’s Republic of China.
The congressional surrender cannot be excused by Declare War Clause ambiguity. James Madison, father of the Constitution, spoke for every participant in the drafting and ratification of the Constitution in explaining: “The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl….” Alexander Hamilton, a vocal proponent of a muscular presidency, echoed Madison in Federalist 69.
Congress has similarly yielded the power of the purse to the President. Among other things, it permitted President Trump to divert billions of dollars of military construction funds to build a wall along the Mexican border, and to raid $80 billion in FEMA appropriations to pay unemployment benefits. Congress has also created a slush fund enabling the President to fight unconstitutional, undeclared wars without asking the legislature for earmarked appropriations by pumping tens of billions of dollars into Overseas Contingency Operations.
The power of the purse is a cornerstone of separation of powers to combat executive excesses or lawlessness. Mr. Madison amplified in Federalist 58: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
These examples are but the tip of the iceberg.
Congress acquiesces in presidential substitutions of executive agreements in lieu of treaties to circumvent the constitutional requirement of a two-thirds Senate majority to ratify international obligations.
Congress gives away its power over domestic policy by limitless delegations to executive agencies to legislate via administrative rulemaking.
Delegations impair enlightened self-government. Compromise and moderation are staples of Congress which requires a consensus among 435 House members and 100 Senators representing varied constituencies to enact a statute. Legislation ordained by the executive, in contrast, invites extremism and excesses because of the absence of internal checks and balances. The executive is the decider and does not tolerate healthy dissent. Is it any wonder that the executive promulgates legislative rules at 30 times the rate of congressional statutes.
Congress is vastly more transparent than the executive branch. Votes, floor debates, and hearings are generally public. Sunshine, said Justice Louis Brandeis, is said to be the best of disinfectants; electric light the most efficient policeman. The executive branch operates in secrecy, which invites lawlessness and staggering misjudgments.
Members of Congress are accountable for their votes through periodic elections. Executive branch bureaucrats are not. Further, the latter are wont to regulatory capture in anticipation of lucrative opportunities in the private sector for serving the corporate interests they were appointed to restrain.
Congress has permitted the executive branch to thwart oversight by abandoning its inherent contempt power, including the power to imprison or fine executive officials (including the President) for contumacy. See McGrain v. Daugherty, 273 U.S. 135 (1927). Courts are too lead-footed to enforce congressional subpoenas within a politically relevant time frame. And the executive branch will never criminally prosecute one of its own for contempt of Congress, 2 U.S.C. 192. The Trump administration flouted over hundred congressional subpoenas and many formal requests to testify, with impunity.
A high-water mark of congressional faint-heartedness is the failure of the House Select Committee to Investigate the January 6th Attack on the United States Capitol to subpoena former President Trump and former Vice President Mike Pence to testify about the Mr. Trump’s protracted strong-arming to prevent Mr. Pence from performing his constitutional duty to count the 2020 state-certified electoral votes for president—an unprecedented, attempted coup against the Constitution and self-government.
A long distance reason for congressional dereliction is the neglect by law schools in offering courses in the constitutional powers of Congress and a history of their actual exercise beginning with the First Congress. Harvard Law students should insist that this alarming omission in the education of their profession be filled—a necessary first step back to regular constitutional order.
Bruce Fein is a Harvard Law graduate, class of 1972, and author of American Empire Before The Fall and Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. Among other things, Mr. Fein was associate deputy attorney general under President Reagan and counsel to the Joint Congressional Committee on Cover Arms Sales to Iran. Mr. Fein has testified before Congress over two hundred times.