Congress must flex legislative muscle to take back authority

Congress must flex legislative muscle to take back authority
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At the House Judiciary Committee hearings this week, lawmakers will grapple with a constitutional dilemma even more fundamental than the question of impeachment. President TrumpDonald TrumpSenators given no timeline on removal of National Guard, Capitol fence Democratic fury with GOP explodes in House Georgia secretary of state withholds support for 'reactionary' GOP voting bills MORE has defiantly, repeatedly, and comprehensively denied the inherent authority of Congress to secure the important testimony and documents of senior administration officials.

This turns the Constitution on its head. Even Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE, now a private citizen, challenged the right of Congress to hear him explain his inability to exonerate the president of obstruction of justice. The decisions this Congress will make in defense of its authority will either reestablish its rightful place or solidify deference to an increasingly powerful executive branch. With House leaders now fecklessly debating the efficacy of an aggressive subpoena strategy, the founders haunt their deliberations.

In the Federalist Papers, James Madison warned, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” So said Madison in 1788, and so may it be remembered in the halls of Congress in 2019. At the other end of Pennsylvania Avenue, Trump has no such interest in the separation of powers or checks and balances. He perverts his authority as the unitary executive and the privileges that accompany that status for the service of his own fortunes rather than for the good of the country.


Congress has an opportunity to demonstrate higher motives, and this is not just Democrats but also Republicans. The judiciary branch stands ready to arbitrate these constitutional disputes. That the courts will take months, if not years, to resolve some of these disputes does not equate to a 21st century constitutional crisis, no matter what our short political attention spans might have us ultimately believe.

But the courts will not be enough to make Congress regain its rightful place in the constitutional system. Our political system needs the swift return of traditional Madisonian separation of power concepts. The House Judiciary Committee can start to reassert the original constitutional order by using the full breadth of both its legislative and investigatory powers this week. Speaker Nancy PelosiNancy PelosiSenators given no timeline on removal of National Guard, Capitol fence Democratic fury with GOP explodes in House House Republican attempts to appeal fine for bypassing metal detector outside chamber MORE says she is pursuing an “ironclad” case against the president on impeachment. A political “ironclad” threshold is one that she knows can never be met. This in turn means that legislative oversight of the executive branch must rely in some part on the courts.

Madison would undoubtedly chastise her strategy, especially in the face of obstruction, as one that willfully abdicates the constitutional role of Congress as arbiter of executive misconduct. In fairness, Pelosi might be right. Impeachment might well ensure the reelection of Trump, it is well understood that the Senate will not convict. But if Pelosi is wrong and Trump is reelected anyway, history will judge harshly and the authority of Congress to oversee an emboldened president will be strewn in tatters.

As the president has already begun a fight in the courts, Congress needs to fight back with equal or greater vigor. The path toward Madisonian renewal is blocked most effectively with the executive branch and the judiciary branch working together but cleared with the judiciary branch siding with Congress. The courts alone, however, will not be enough to undo a century of the executive branch successively aggregating power.

Congress will have to flex the legislative muscle it has allowed to atrophy, not just with subpoenas but with real laws that specify particular rules and spend particular monies, rather than allowing the president to make them. In the hearings this week, Congress can start the battle on its home turf.

Chris Gagin is an attorney and director of Defending Democracy Together.