Copyright The New York Times
As it now stands, approximately 42 million Americans will lose access to the Supplemental Nutrition Assistance Program when its funding runs out on Saturday. Most are children, seniors and the disabled. Some are able-boded adults who just happen to work jobs that leave them short of what they need to survive. Private charity can fill a small part of the gap. So, too, can the efforts of individual states, more than two dozen of which are suing the administration to try to force it to release emergency funds to continue to pay for food stamps. But the overall scale of hunger in the United States is too large for any one institution to deal with the lapse in benefits — the federal government must act. The federal government must also do something to address a catastrophically large increase in premiums for Americans who buy their health insurance under the Affordable Care Act. Millions will have to drop their insurance if Congress doesn’t fix this problem, and millions more will be forced to spend themselves into ruin to gain access to needed care. Looking beyond domestic policy, President Trump has launched repeated, and possibly unlawful, attacks on noncombatants in the Caribbean and even the Pacific. He has mused about land strikes targeting Venezuela as well. There is a chance that he and Secretary of State Marco Rubio are thinking of regime change in that country. The president has also taken it upon himself to help pay soldiers using funds from a private donor, part of his ongoing attempt to direct spending without congressional approval. All of this demands a congressional response. If it is not an impending disaster of food and health care insecurity, then it is a president who has done nearly everything he can to tear down the limits placed on the executive branch so that he can usurp the constitutional authority of Congress. It is also true, however, that the United States, at this moment, does not have a functioning national legislature. The government has been shut down since the beginning of the month, when the Republican-led Congress failed to pass new spending authority into law. Since then, House Republicans have all but given up on governance, and Speaker Mike Johnson has put the House of Representatives on ice. The Senate is in session, but confirmation hearings notwithstanding, it is more or less inert. There is no formal mechanism in the American system of government to dissolve the legislature. And for good reason: Congress is an independent institution with its own sphere of authority. To give any actor the power to dissolve it would fatally undermine its place in the nation’s constitutional arrangement. But by keeping the House on indefinite hiatus — as well as sidelining its oversight authority and more or less ceding its power to make law to the president — Republicans have successfully circumvented the text of the Constitution to make our national legislature a nullity. They have, for all intents and purposes, dissolved Congress. It is impossible to overstate the magnitude of this transformation of the American system. Despite what the president and his apologists would have you believe — or what the executive power fetishists on the Supreme Court seem to think — the executive branch is not actually the leading institution of the federal government. The Constitution makes this clear in its structure: Article I belongs to Congress, and where the president is given a narrower set of defined duties, the national legislature is handed a broad array of powers, including powers that, under the British constitution, had been the king’s. Those powers include the “Power To lay and collect Taxes, Duties, Imposts and Excises”; “To borrow Money”; “To regulate Commerce with foreign Nations, and among the several States”; “To declare War” and “To raise and support Armies”; and “To constitute Tribunals inferior to the Supreme Court.” The Constitution also states that Congress will have the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The traditional understanding is that these powers were enumerated like this to limit Congress. But as Richard Primus, a law professor at the University of Michigan, argues in his new book, “The Oldest Constitutional Question: Enumeration and Federal Power,” there is a strong case to make that these powers represent the floor — not the ceiling — of congressional authority. “The point of enumeration, understood this way, was not to rule out powers not mentioned,” Primus writes. “It was to rule in powers that were important to specify, lest Congress’s authority to exercise those powers be doubted — either on the theory that the relevant powers were held exclusively by the states or on the theory that they belonged to the president.” We may speak, colloquially (and somewhat redundantly), of “coequal” branches, but there is a real sense in which Congress is first among equals, with the power to shape and discipline the other departments of government when necessary. Or, as James Madison observed in Federalist No. 51, “In republican government, the legislative authority necessarily predominates.” It is difficult, in the present moment, to imagine a powerful and active Congress rather than what we have instead, a hidebound, sclerotic legislature unable to tackle the nation’s most serious problems. But this deficiency isn’t set in stone; it is a function of political choices. “Institutional authority is something built by successful public engagement through time,” Josh Chafetz, a law professor at Georgetown, observes in “Congress’s Constitution: Legislative Authority and the Separation of Powers.” Congressional authority, in particular, “is in part a function of the success or failure of Congress’s public engagements in past historical moments and in part a function of how adroitly congressional members and leaders make use of historical reservoirs of authority in the present to create a future congenial to them.” Put a little differently: Although Congress has a host of powers available to it, its ability to deploy those powers in conflicts with the other branches — and to walk away from those conflicts with its authority and stature enhanced — has as much to do with politics and public engagement as it does with the enumerated powers themselves. To reflect on the high-water marks of congressional influence throughout American history is to see periods in which individual lawmakers were powerful and skilled enough to battle with presidents and their administrations for public support. There is a reason, in other words, we still remember Henry Clay, Daniel Webster, Stephen A. Douglas and Charles Sumner. Or, in the 20th century, legislators such as Robert F. Wagner, Robert Taft, Everett Dirksen and Ted Kennedy. This current Congress, led by John Thune in the Senate and the aforementioned Johnson in the House, has tossed away its ball and left the field of play. It treats its power as a burden: something to avoid for fear of challenging the chief magistrate and risking his wrath in the form of an angry social media post or, more concretely, a primary challenge. Individual members cannot even be bothered to actually represent their constituents, abandoning any effort to push for the material interests of their voters in favor of a commitment to the psychological and symbolic demands of a distinct partisan minority. And to the extent that Republicans have engaged with the public as members of Congress, it is to justify their inaction and explain their decision to hand their authority away to the president and his scheming viziers. In the absence of a functional Congress, the White House has taken the lead, all but supplanting the legislature as the branch that matters. If and when the shutdown ends — if and when the House returns from recess — there is little chance that this authority, freely given to the executive, will flow back in the opposite direction. It is a revolution of sorts — one that would almost certainly shock the consciences of many, if not most, of the thousands of Americans who have served in the national legislature since it first took shape in 1789. And yet, the powers do remain, if only on paper. The authority still exists, albeit only in theory. We are still far away from anything like a post-Trump period in American politics. But it will come, and it is not too early to think about the reconstruction and renewal of American democracy. What should be at the top of any agenda, given the magnitude of the challenges that will face us when Trump and his movement are gone, is the rebirth of Congress as the dominant force in the business of government. And in particular, a Congress that doesn’t hesitate to use its powers — hard and soft, formal and informal — to reshape the American political system. If Trump represents the apogee of the imperial president — an executive unbound by rule of law — then what we may need, in his wake, is an imperial Congress.
