Source: The Concord Coalition
I am always happy when I can find a subject to write about that makes me really unhappy, and my writing today was inspired by an article that reported that 86% of our spending is now automatic, or legally mandated. This is a combination of primarily entitlement spending and interest payments on debt. I learned in my government classes (as did you if you were paying attention) that one of Congress’s chief responsibilities is controlling the purse of government. Now they control only 31% of it, which should be an outrage to anyone who believes in the separation of powers.
Where did the massive expansion of presidential powers begin? With that epic game-changer FDR of course! It should at this point be my motto to say that “It all started with Roosevelt”, because for modern politics its mostly true. Roosevelt was fortunate to have a Speaker of the House so willing to kowtow to whatever he wanted in Illinois’ Henry Rainey, who left the drafting of legislation to FDR’s “Brain Trust”. Unprecedented peacetime authority was extended to the president in signature New Deal legislation and in 1934, Congressional power was permanently abdicated on trade with the Reciprocal Trade Act, which although had the impact at the time of tariff reduction, the powers of the law are now being used by President Trump to raise them. This law ended the back and forth that would occur with trade between Republican and Democrat administrations. A Republican Administration would bring either tariff increases or very, very minimal tariff reductions such as with the Payne-Aldrich Act. A Democratic administration would lower tariffs and enact income taxes to make up for revenue loss. This trend of power sacrifices was continued with his successor, Jo Byrns of Tennessee, when Congress passed House Resolution 117 in 1935, which gave the president funds for work relief with no strings attached, and he used this authority to create the Works Progress Administration. One objector to this measure was Dewey Short, the sole Republican representative from Missouri, who as one of the most masterful orators to ever set foot in Congress, spoke before the institution in a way that gained national press attention:
I deeply and sincerely regret that this body has degenerated into a supine, subservient, soporific, superfluous, supercilious, pusillanimous body of nit-wits, the greatest ever gathered beneath the dome of our National Capitol, who cowardly abdicate their powers and, in violation of their oaths to protect and defend the Constitution against all of the Nation’s enemies, both foreign and domestic, turn over these constitutional prerogatives, not only granted but imposed upon them, to a group of tax-eating, conceited, autocratic bureaucrats – a bunch of theoretical, intellectual, professional nincompoops out of Columbia University, at the other end of Pennsylvania Avenue-who were never elected by the American people to any office and who are responsible to no constituency. These brain trusters and ‘new dealers’ are the ones who wrote this resolution, instead of the Members of this House whose duty it is, and whose sole duty it is, to draft legislation (Wiley, 1984).
Despite this rousing speech, the resolution passed easily, with most sticking to their guns. The powers of Congress have also been increasingly taken by the federal bureaucracy: the Social Security Act and all the programs that fell under it required the hiring of an army of federal employees to enact and interpret the law. The war powers of the president also expanded during this time, and although a formal declaration of war was made by Congress against members of the Axis, major and minor, this would be the last time such a formal declaration was made. Although there have been resolutions for military action that have effectively substituted a declaration of war, it is still a surrender of power and presidents have considered it a formality to maintain the illusion of Congressional power, not a requirement.
Medicare and Medicaid: Confiscation of Congressional Spending Powers at Congress’s Consent
The United States could have taken the single payer path and established their own NHS had the Wagner-Murray-Dingell bill, a forgotten part of President Truman’s mostly unsuccessful Fair Deal package, passed. However, this legislation had no support from Republicans and strong opposition from Southern Democrats, preventing its adoption. American progressives figured they needed to take a gradualist approach and began pushing for Medicare. Although opponents Sen. Robert Kerr (D-Okla.) and House Ways and Means Committee chair Wilbur Mills (D-Ark.) tried to stop Medicare through the 1960 Kerr-Mills Act, which provided funds to states to form their own programs covering medical care for the elderly, it was but a mere delay. The 1964 election produced the Great Society Congress, which had enough liberal Democrats to counteract conservative opposition to Medicare.
The central opponents in the Democratic Party were by this time neutralized: Kerr had died on New Year’s Day 1963 and Mills ultimately caved to the wishes of liberal Democrats on this matter even though as an expert on taxes and budgets, he knew that Medicare and Medicaid would have sustainability issues and would consume increasing amounts of the federal budget. These programs themselves have reduced Congressional power as more money is devoted to maintaining them, leaving less and less policy options open for Congress. In 1968, 66% of spending was discretionary. By 2018, the figure had dwindled to 31%. Congress has very little power to solve our budgetary issues unless they change laws on entitlements, which they are not inclined to do as it would cause an enormous political stink. Yet such an action is necessary if we want the federal government to have other functions than provide entitlements and national defense and what’s more, to prevent Social Security’s insolvency in 2035.
Congress Strikes Back: The War Powers Resolution and the Impoundment Control Act
The Vietnam War produced a lot of dissension, and Democrats, who had been willing to let Roosevelt and Truman have tremendous leeway on foreign policy especially when the latter went to war in Korea without Congressional approval, were now having second thoughts about executive power as the Vietnam War raged on, and this was especially so when Nixon was president and expanded the war to Cambodia and Laos. In 1973, Congress passed the War Powers Resolution, which some critics thought an unconstitutional power grab by the legislative branch. This law allows the president to take military action but requires they get approval from Congress if the action is not completed in 60 days. How effective this has been in actually reducing presidential power is disputed.
From the first day George Washington was in office up until Nixon, presidents had the power to impound funds appropriated by Congress. However, President Nixon used impoundment extensively and selectively to the point the Democratic Congress considered it abusive. In 1974, Congress passed the Budget Control Act, which contained in it the Impoundment Control Act of 1974, which weakened presidential powers to the point that the president could ask Congress to rescind appropriated funds, but Congress has seldom considered such requests. Efforts have been made to reassert presidential budget control power with the proposal for a line-item veto, but the Supreme Court ruled this proposal unconstitutional.
Gulf War and Gulf War II: Congressional Support Ideal, But Optional
Although both George H.W. Bush and George W. Bush sought and received resolutions of support from Congress for committing troops to Iraq, both thought that going to Congress would simply be a good idea, not mandatory because it technically isn’t a “declaration of war” despite the United States engaging open hostilities with another nation through the use of arms, which is another way of saying “war”! George H.W. Bush sent the resolution to Congress simply to have it stamped with approval and nothing more, as he claimed he could send forces in because he had built up a multi-state coalition to do so (Keller, 2018). When Rep. Ron Paul (R-Texas) proposed in 2002 issuing a declaration of war on Iraq instead of a resolution, Congressional leaders dismissed it out of hand even though U.S. operations would continue there until 2010. George W. Bush initially hesitated to even bring the resolution before Congress, but did so for reasons of optics, not obligation. At least the Bushes kept up the illusion, Clinton didn’t even bother with airstrikes in Kosovo, and even continued on after the House rejected approval, and likewise President Trump didn’t seek Congressional approval for Syrian airstrikes. As Russell Riley, head of the Presidential Oral History Program at the University of Virginia states, “Since 1973, there are these games that go on. Everyone knows what will happen: the president will make noises about consultation with Congress, and then will pretty much do what he wants” (Keller, 2018).
The Problem of Congressional Loss of Power
The problem of this loss of power is quite clear: it corrupts the integrity of the separation of powers in the name of convenience. The American cult following of the notion of the supreme executive has been aided and abetted by historians who have biases for presidents who expand their powers and go to war (successfully, that is). Congress is supposed to be the body for the people, and the people’s influence is now restricted to 14% of the budget, and unless that’s what the people really want, it subverts the idea that they are in control. What’s more, Congress lacks incentive to take its powers back in the current day and age. When a Republican is in power Republicans in Congress will be unwilling to rollback presidential powers, and when a Democrat is in power, Democrats in Congress will be eager to go along with expansions (ex.: Dreamers order). If the Trump presidency is the rolling disaster its critics claim, how about they reassert some power and do so more than investigations? Congress currently has bottom of the barrel approval ratings and yet it is afraid to take back real institutional power. What are they afraid of? That they’ll lose that 10-15% that constitutes their fanbase? More probably, they are afraid of crossing any president that happens to be in their own party, lest a primary endorsement be denied. In 1938, state Democrats actually resented Franklin D. Roosevelt, one of the most popular presidents in history, trying to get involved in their primaries and mostly gave him a black eye on that matter! I am now about to advocate a position that probably will be as popular as gonorrhea: give Congress more power.
The Way Out: A Bipartisan Coalition
Given the problem I have written, the only exit from this situation will be to convince certain groups of Democrats and Republicans that they should stand together against any further expansion of executive power and even take back some powers for Congress. While I would normally think that the super stubborn Freedom Caucus would be up to such a task, the trouble is that a significant portion of them are reflexive Trump defenders, so any notion of reducing executive powers while he is president goes out the window, lest they attract the ire of Carlson, Hannity, or his rabid fan base. While Democrats may be gung ho about reducing the current president’s powers, expect all enthusiasm for it to dissipate with the next Democratic president as they sure didn’t seem to mind when Obama expanded his powers in the name of contravening the Republican Congress. Let’s also not forget that their base continues to push expanded presidential powers, as they seem to regard Trump as merely an aberration in how federal power could be misused. “Federalize everything” seems to be their motto generally, unless its immigration under the current president, a function that they wanted to insist was federal when Arizona wanted to further enforce immigration law. To ask for a coalition that stands independent of presidents is a tall, and perhaps even impossible order in this day and age, but if we are serious about restoring the separation of powers to what it was meant to be, tall orders are in order! And who knows, maybe, just maybe, Congress can get a bump in its approval ratings for asserting itself.
Dean, J. (2002, August 30). President needs congressional approval to declare war on Iraq. CNN.
Government-Wide Inventory of Accounts with Spending Authority and Permanent Appropriations, Fiscal Years 1995 to 2015. (2018, November 29). U.S. Government Accountability Office.
Keller, K. (2018, May 14). An Unlikely Hardliner, George H.W. Bush Was Ready to Push Presidential Powers. Smithsonian Magazine.
Mandatory Spending Growth Means the Budget Debate Is Increasingly Focused on a Shrinking Part of the Budget. (2017, September 18). The Concord Coalition.
Wiley, R.S. (1984). Dewey J. Short vs. The New Deal. White River Valley Historical Quarterly, 8(8).