Hill Republicans must strengthen Congress – big league
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With unified Republican government on the horizon, congressional Republicans may be tempted to place on the backburner their branch’s function as a check on presidential power. They should resist this temptation. Instead, congressional Republicans should take up the mantle of reversing the decades-long shift of authority from Capitol Hill to the White House.

Over many decades, the executive branch has accumulated powers traditionally held by Congress.  Today, executive agencies annually publish approximately 175,000 pages of regulations, many of which are legally binding; President Obama commands U.S. military operations in Syria and elsewhere based on a 9/11-era congressional authorization; and the use of executive orders to set immigration policy has further upended conventional notions of Congress as the nation’s lawmaker.

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Executive aggrandizement far predates the Obama administration.  Nearly every modern president has expanded the office’s authority at Congress’s expense. For presidents grappling with an inbox that demands immediate attention, the countervailing need to maintain Congress’s role as a bulwark against a potential future unfit president seemed abstract and distant.

Some Republican lawmakers, along with their Democratic colleagues, now recognize that these concerns may no longer be abstractions.  Throughout the presidential campaign, the GOP’s “Never Trump” faction expressed alarm over President-elect Trump’s policy commitments, values, and temperament.  Even those Republicans that do not share these concerns with respect to President-elect Trump should recognize that a future demagogic candidate – from either the left or the right – could conclude that the Trump campaign’s mix of I-alone-can-fix-it strong-man populism and rancor directed at marginalized groups and journalists provides a winning path to the White House.

To address these concerns, congressional Republicans must reinvigorate their branch.  While there are many potential ways to do so, Congress should start with two of the most obvious.

First, Congress should amend the Inspector General Act of 1978 to require department secretaries and agency heads to certify to Congress that they have provided unrestricted access to their inspectors general.  Inspectors general – independent watchdogs charged with uncovering waste, fraud, and abuse across the executive branch – are remarkably effective. My research on congressional oversight shows that Congress’s oversight agenda often mirrors the content of inspectors general reports, and that the oversight hearings that follow often substantially alter agencies’ behavior.

Under President Obama, however, some agencies systematically prevented their inspectors general from accessing what the agencies deem sensitive information, stymying investigations into alleged abuses at the FBI and DEA – exactly the sorts of law enforcement agencies that are most ripe for misuse.

To effectively shed light on executive overreach under an abusive president, inspectors general must have the authority to do their jobs before that unfit individual assumes office. Now, in this lame-duck session, is the time for Congress to bolster the role of the inspectors general.

Second, Congress should pass legislation giving it final say on important regulations. Several times in recent years, the House passed the Regulations from the Executive in Need of Scrutiny Act on party lines.  Had it been enacted, the act would have required agencies to send most major rules to Congress for an expedited, up-or-down vote.

Previous versions of the act had an anti-regulatory flavor; they would have applied only to rules with estimated societal costs above a monetary threshold. Expanding this provision to cover rules with estimated private-sector benefits exceeding the same threshold would correct this imbalance, thereby bringing on needed Democratic support in the Senate. With this alteration, the act would grant Congress the final say on all significant policy changes, thereby placing a new legal check on an unfit president.

These proposals are but two of many needed steps to re-calibrate the balance of power between the political branches. A more complete list would include a new framework for requiring congressional authorization for the use of military force and restoration of funding for legislative support agencies, which provide Congress with independent, objective information, to their pre-1990s levels.

Convincing Republicans to clip the presidency’s wings in the weeks before a Republican president takes office will be a hard sell. They should recall their party’s experience in the 2006 midterm elections, when headlines concerning FEMA’s response to Hurricane Katrina, waste in Iraq reconstruction projects, and neglect at Walter Reed Army Medical Center precipitated Republican losses in both chambers.  The lesson: executive mismanagement has consequences for the president’s co-partisans in Congress.

More importantly, congressional Republicans should remember their party’s commitment to constitutional principles, including the role that Congress must play in the balance of powers and the importance of limited government in protecting the rights of those most likely to suffer from executive overreach.

Accordingly, rather than viewing a constrained executive as an obstacle to conservatives’ policy objectives, congressional Republicans should consider it an ends unto itself. By pursuing this path, Congress would strengthen our separation-of-powers system to withstand a president in any mold.

Brian D. Feinstein is a lecturer at the University of Chicago Law School.


The views expressed by authors are their own and not the views of The Hill.