Congress asserts itself
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Congress, and particularly the House of Representatives, appears poised to assert itself in a way not seen for decades.

The legislative branch is seen by some as a weak institution, important mostly for its ability to influence the agencies of the executive branch (where the real power is). “The legislative branch,” says Rep. Trey GowdyTrey GowdyGowdy: Nunes briefed president on matters 'unrelated' to Russia probe Sunday shows preview: Aftermath of failed healthcare bill Has Putin already won? He divides US intel from political leaders MORE (R-S.C.), “was designed to be and at one point was the most powerful of the three branches. It is without question the weakest of the three branches now. Part of that is because we’ve allowed that to happen.”  

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Congress still has tremendous power, if it can find a way to use it. It can declare war, defund or eliminate agencies, curtail the jurisdiction of the Supreme Court, and remove presidents from office. However, the “power of the purse” has been lost to “mandatory” spending. Huge swaths of legislative authority have been delegated to regulatory agencies. Partisanship has made effective oversight of the executive branch virtually impossible. In Machiavellian terms, Congress is neither feared nor loved.

This may be about to change. Congress now has the leadership, the desire, and a plan for reasserting itself. Two key prerequisites remain: unity and a willing partner in the White House.

Speaker Paul RyanPaul RyanBlack Caucus calls on Ryan to remove Nunes as Intel Committee chair Governing means supporting AHCA Overnight Healthcare: Insurers face big choice on staying in ObamaCare | HHS chief Price grilled over budget cuts MORE has tremendous moral authority because he is a bona fide conservative who didn’t want the job. He cares deeply about America’s poor and has put real effort into finding new and better solutions for them. He is a serious policymaker who communicates well and does not play games. He is a walking antithesis of the congressional stereotype, and that makes new things possible—including entitlement reform.

Under his leadership, the House has developed an agenda it calls A Better Way. It is more detailed than 1994’s Contract with America and it is genuinely aspirational. It does not look or sound like a set of campaign promises. Rather, it is a true representation of what House Republicans would like to do should they ever have the chance. They now have that chance.

The A Better Way agenda declares, with an accusatory tone, that “liberty itself is at stake when any of the branches [of government] violates the separation of powers.” But it also admits that liberty “is likewise in jeopardy when a branch fails to exercise its power.” Congress, says this official agenda of House Republicans, has let its “power atrophy—thereby depriving the people of their voice.” The Republican Congress wants its power back.

The agenda is more than aspirational, however. It is also a plan. Alongside proposals for fighting poverty, reforming healthcare, and bolstering the economy are specific ideas for restoring Congress’s Article I powers and for checking the power of the executive. They include a rewrite of the Administrative Procedures Act, new “best drafting practices” to avoid ambiguity in legislative text, expedited judicial action on suits against the executive for failure to enforce statutes, new powers for agency inspectors general, the end of Chevron deference (judicial deference to agency interpretations of statute), and enactment of the REINS Act—which would require congressional sign-off before major regulations can take effect.

To accomplish this “Article I restoration” agenda, Republicans will need to be unified. Much has been made of divisions in the Republican Congress. They are, indeed, a diverse group. There are libertarians like Thomas Massie, moderates like Charlie Dent, family-values conservatives like Vicki Hartzler, defense hawks like Mac Thornberry, and fiscal hardliners like Dave Brat. This diversity is what a majority party looks like. They are unified, however, in their desire to reassert Congress’s constitutional powers.

Republicans will also need a willing partner in the White House to sign those parts of the agenda that require a presidential signature. Surprisingly to some, the Trump administration may have the closest ties to Congress in memory. Vice President-elect Mike PenceMike (Michael) Richard PenceNY Times fires back at Trump: 'We did not apologize’ How the GOP’s ‘Access to Care’ bill cuts down states’ rights Christie to take on role in Trump's fight against opioids: report MORE is a popular alumnus of House Leadership. Trump has also chosen Elaine Chao, the well-credentialed wife of Senate Majority Leader Mitch McConnellMitch McConnellThe truth is the latest casualty of today’s brand of politics McCain and Graham: We won't back short-term government funding bill Senate seen as starting point for Trump’s infrastructure plan MORE, to be his Transportation Secretary. Sen. Jeff SessionsJeff SessionsFiorina calls for special prosecutor for Russia probe The Hill's 12:30 Report Dem rep: Sanctuary cities are actually ‘Fourth Amendment cities’ MORE, Rep. Ryan Zinke, Rep. Mike Pompeo, and Mick Mulvaney are among what appears to be a lengthening list of legislators headed to the Trump administration.  Reps. Lou BarlettaLou BarlettaOptimism rising for infrastructure deal Top Republican: The healthcare bill is dead GOP faces risky decision on ObamaCare vote MORE, Marsha BlackburnMarsha BlackburnObama FCC's 'privacy' rules were a sham Week ahead in tech: FCC privacy rules on the ropes Trump meets with broadband CEO, Texas gov on infrastructure MORE, Jim BridenstineJim BridenstineLawmakers sound alarm on space security The Hill's Whip List: 36 GOP no votes on ObamaCare repeal plan A guide to the committees: House MORE, Kevin Cramer, Randy ForbesRandy ForbesWhy there's only one choice for Trump's Navy secretary Trump likely to tap business executive to head Navy: report Congress asserts itself MORE, Scott GarrettScott GarrettHuizenga to chair influential subcommittee overseeing Wall Street Congress asserts itself The Hill's 12:30 Report MORE, Duncan Hunter, Peter King, Tom Marino, and Thomas Massie, are all rumored to be under consideration for high-level posts. Democratic Sen. Heidi HeitkampHeidi HeitkampSenate Dems to Trump: Work with us on ObamaCare Senate braces for fallout over Supreme Court fight NRA launches M Supreme Court ad MORE is also evidently under consideration.  

Congress will begin early next year using devices already in its toolbox—budget reconciliation and the Congressional Review Act—to cancel or reverse many of the policies of the Obama administration. This will, for the most part, be a partisan exercise made possible by one election. Whether Congress as an institution can durably regain its place as the first branch of government will depend partly on a willing partner in the White House. It will also depend on Republicans’ ability to stay unified, to focus on what is achievable, to actually legislate and appropriate, and—perhaps most importantly—to convince the country that they are acting on principle rather than partisanship.

Gabe Neville is a Senior Legislative Advisor at Covington & Burling LLC. He worked in the House of Representatives for nearly two decades.


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