“Imperial Congress”—many in the conservative movement are denouncing it these days. From all over the right, we hear worries about slipping presidential prerogatives, or denunciations of Congress’s “meddling” in foreign policy.
But I would argue that it is the Imperial Presidency that threatens our freedom. Too often. Congress simply lays down in front of the executive steamroller. When it attempts to recover a crumb or two of its constitutional prerogatives—as with the War Powers Act or the Boland Amendment—it is condemned for treading on “presidential” territory.
Some conservatives—who on other days pooh-pooh Reagan-Bush budget deficits as meaningless—even make a cause out of the size of Congress’s budget, which totals .08 percent of federal outlays. Of course Congress’s budget should be cut—all of Washington needs a meat axe taken to it. But in a city of executive-branch sinkholes like HUD, Congress is hardly the place to start. Given the gargantuan government we have—which also violates the Constitution, of course—it is in the taxpayers’ interest for Congress to have sufficient staff, if only to throw a few roadblocks in the way of the executive behemoth. We should also remember that all the congressional staffs put together wouldn’t fill one bureau in HHS.
The Founders, steeped in the English parliamentary tradition, knew that liberty is threatened by kings and dictators, not legislators. They saw the progress of representative government as the wrestling of power from the executive. That’s why they wrote the Constitution as they did.
Article I vests “all [all] legislative power” in the preeminent branch of government, Congress. Congress alone has power to raise and spend taxes, borrow, regulate commerce, coin money, declare war, create federal courts and determine their jurisdiction, and establish the armed forces.
Article II admonishes the President to carry out the laws passed by Congress. He may veto those laws, but his veto can be overridden by Congress, the final authority. The President may also recommend legislation, but as National Review co-founder Frank Meyer wrote 25 years ago, “Recommend means recommend, not demand, not pressure, not go to the people to arouse demagogic pressures against the Congress.”
The President is named commander-in-chief of the armed forces; he may appoint ambassadors and judges, but only with the consent of the Senate; and he may negotiate treaties, but again only with the consent of the Senate. There is no mention of foreign policy as a presidential entitlement. His role as head of the armed forces has a foreign policy dimension only when Congress has declared war (the Founders not having envisioned Uncle Sam as global gendarme).
Article III shows that the Founders intended the judiciary, despite Warren Court imperialism, to be the “least equal” branch. Not only does the Constitution allow Congress to establish (or abolish) all federal courts aside from the Supreme Court, Congress can also—except in certain narrow areas such as lawsuits between states—determine the jurisdiction of the federal courts, including the Supreme Court.
For example. Congress could, by simple majority vote, take abortion cases out of the hands of the Supreme Court and other federal courts, and leave this question to the states. That such a simple and Constitutional solution to Roe v. Wade occurs to no one is ample proof of a shriveled Congress and a swollen executive and judiciary.
To argue that the Framers intended Congress to be the paramount branch of government is not to defend our present representatives and senators. With pitifully few exceptions, today’s members of Congress represent a sort of reverse evolution from 1789. Humans have turned into monkeys, albeit with law degrees. Nonetheless, Congress remains the branch of government closest to the people. As its retreat on the pay raise showed, it can be influenced. A whiff of popular opposition makes the members sit up and take notice. A hint of possible defeat will make them do anything, even the right thing.
The Armand Hammers of the world can sway the presidency or the judiciary. The rest of us cannot. That’s why believers in a limited constitutional republic must not join the attacks on Congress as an institution, for the alternative is what Meyer called “the uncontrolled power of a President elected with a specious quadrennial ‘mandate.'”
If we want to recover our freedom—so diminished in this century by despotic Presidents, bureaucrats, and judges—we must curb the executive and the judiciary, and Congress is our only weapon. The Founders gave us that weapon in the Constitution. It is up to us to use it.