In the manual of naval tactics, a shot across the bow of a ship is a nonlethal warning to “heave to,” or stop. That’s pretty much what a congressional resolution of disapproval is supposed to do: signal to the president that the course he is taking will have dire consequences. This week, if predictions of modest bipartisan support in the Senate pan out, Congress will take a shot at President Trump’s attempt to thwart its power of the purse and fund his border wall with a national emergency declaration.
Because the resolution statute was changed by a Supreme Court decision in 1983, the president can veto the bill and resume steaming in the direction he charted for himself. Trump has already promised to do just that, and it’s equally clear that Congress won’t be able to muster a 2/3 vote to override that veto.
Given these facts, why fire the shot at all?
The answer is that Congress has been lavish, even profligate, in handing power over to the executive branch of government, and the Senate seems to be belatedly remembering its constitutional duties.
The origin of Congress ceding its legislative power to the executive dates back more than a century and has accelerated for two reasons: expertise, as government has grown larger and more complex, and time, as flash-point risks have proliferated.
Congress is specialized, but only up to a point. It does have committees that have responsibility for authorizing programs for a dozen Cabinet-level departments and providing money for them to operate. But it cannot, for example, manage the lethal intricacies of the nuclear stockpile as competently as the engineers and scientists at the Department of Energy, or compute when the country will hit the limit of its ability to borrow money as precisely as the economists at the Treasury Department. Congress would have to devote its entire staff to duplicating the work of the Bureau of Labor Statistics in the production of the monthly employment figures. These levels of expertise reside not in the lawyers, doctors, teachers and business people we elect to represent us, but in executive branch employees hired for their special knowledge.
The framers couldn’t have anticipated how specialized the federal bureaucracy would become and how difficult it would be for elected representatives to keep up with it. Neither could they have anticipated the development of intercontinental ballistic missiles that could reach our shores before Congress could convene to declare war, as the Constitution prescribes. A president being trailed by an army warrant officer carrying the “football” containing the nuclear codes would have been as unimaginable to them as Instagram or frozen yogurt.
But even when time and expertise are not at issue, Congress has acquiesced to the executive branch by granting the president powers, including “prosecutorial discretion” — used by President Obama to shelter the “Dreamers” from deportation — and the “repurposing” of funds that Trump vows to do when he shifts money appropriated by Congress for disaster relief or military construction to building barriers on our southern border. Trump justifies his plan by citing an act of Congress that grants him power to declare a national emergency, but does not specify what constitutes an emergency.
James Madison, in his defense of the proposed Constitution in the Federalist papers, wrote that public opinion would be the ultimate check on any governmental abuse of power, but he added the need for what he called “auxiliary precautions.” They are the checks and balances that we find in the Constitution, such as Congress’ exclusive power to spend the people’s money (Article I, Section 9), or the power of the president to resist the encroachments of Congress with the use of the veto (Article I, Section 7).
Madison believed that these checks would work because the personal ambition of the people in office would cause them to exercise and guard their branch’s particular powers zealously, with legislators aggressively countering the president and the courts and vice versa. “Personal motives,” he wrote, would thwart despotism. Madison assumed that Congress members’ devotion to the institution in which they served would persist. Sadly, it has not.
Self-interest has survived, but not in the wholesome way that Madison predicted. The ambition that Madison saw as resoluteness to protect the power of the House or the Senate has been transformed by today’s lawmakers into a desperate search for political cover from the wrath of voters allied with the president. When asked in a recent interview why he chose full-throated support for the president over his once-admired pragmatism and bipartisanship, Sen. Lindsay Graham (R-S.C.) summed it up with remarkable candor: “If you don’t want to get reelected, you’re in the wrong business.” That’s what a vote comes down to for so many in Congress: political survival. Nothing more.
In place of the vigilant guardianship of their constitutional prerogatives that Madison envisaged, modern members of Congress, even their leaders, seem bent on unilateral disarmament. A modest effort to bring Congress abreast of the executive branch in scientific expertise, the Office of Technology Assessment, was scrapped by Newt Gingrich when he was speaker. When the Senate abandoned the filibuster in the confirmation of appellate judges and Supreme Court justices, it sped up the process, but exaggerated the president’s power to shape the judicial branch. These confirmations are rushed through like TSA-approved travelers in an airport security line now.
Thursday’s Senate vote will send a mild warning to the White House over the president’s contrived emergency declaration. But perhaps this modest act of defiance will also mark a turning point, an occasion when too-complacent senators come to see such opposition not as partisan obstruction, but as an opportunity to restore credit to their institution and to their own reputations.