Intoxicated by talk of “co-equal branches,” and blinded by our monomaniacal focus on the White House, many Americans could be forgiven for forgetting that it is Congress, not the presidency, in which the Constitution invests the lion’s share of the power.
Not only does Congress enjoy the capacity to remove officers from the other two branches, while remaining untouchable itself, it also bears responsibility for the gravest decisions that a government may be called upon to make. Congress decides whether or not the country will go to war; with which nations we will ally; under what federal statutes we will live; and, crucially, how and from where federal revenues will be derived. Unsurprisingly for a group whose rallying cry was “no taxation without representation,” it was to the legislature that the Founders accorded the “Power to lay and collect Taxes, Duties, Imports, and Excises.” The power to tax, Daniel Webster proposed, is the power to destroy. The Founders chose Congress as the form of their destructor.
Do we still know this? I wonder. Peruse the headlines even briefly and you will notice that a familiar name pops up without fail. “The Trump administration intends to impose tariffs on … ,” “President Trump contends that ‘trade wars are good’ ... ,” “Today, Mr. Trump slapped tariffs on steel … ,” etc., etc., etc. How peculiar these words would have sounded to James Madison. And how astonished he would have been to see that the response of the nation’s lawmakers was to cavil on cable, or to commentate from the sidelines as if wholly disengaged from the process.
“We need a new president!” many of protectionism’s critics have insisted. A new president? How about a new Congress?
Trump’s approach to trade is, indeed, disastrous. Evidently, the president does not grasp even the basics of the realm. But if the system were working as intended, this would not greatly matter. If the system were operating as designed, the president would have no capacity to impose tariffs without congressional acquiescence. Inspect the Constitution and you will find it grants the executive precisely no power in this domain — which, of course, means that the authority he is presently wielding is the result of legislative delegation. More specifically, it is the result of a handful of statutes that can be amended or repealed at will. Should it wish to, Congress could stop this folly today.
Upon craven theories of self-interest has Congress abdicated its role for 80-odd years.
And stop it Congress should, for the sword they have handed the White House is being hideously abused. As is so often the case, the argument in favor of legislative delegation revolves around national security. If there is a crisis, the theory holds, the White House will be more agile than will the “unwieldly” national legislature. And so, Congress must give up some of its powers for the broader good.
I must confess that I do not find this convincing, even in a vacuum; rather, I see the “national security” cry as an excuse for the adoption of bad constitutional habits, and for the permanent usurpation of power. Moreover, the idea that the Trump administration’s trade war can be justified on national security or emergency grounds is farcical.
We are watching the chickens coming home to roost. For almost a century now, the advocates of congressional supremacy have warned that deputizing the executive to play the legislature’s role was a fool’s game — and not solely on tariffs, but also on other matters of great import, such as war-making, immigration, healthcare, economic regulation and more. Is it sufficiently obvious now why those exhortations were made?
Will lawmakers be led to reform by their present experience? Probably not, since the incentives for impotence remain strong. Allowing the president to take tough decisions inoculates representatives and senators from having to put on the record a difficult and divisive vote, and spares them from doing the elementary research that their job requires. Besides, at any given point both Democrats and Republicans can use the executive’s Caesarism to their political advantage. If their guy is in power, there exists little motivation to reduce his capabilities. And if the other guy is in, well, then his conduct makes the case for his replacement! Upon these craven theories of self-interest has Congress abdicated its role for 80-odd years.
At some point, however, the fever will have to break. The great genius of the American system lies in its comprehension of human nature: Rather than heaping power on one person in the hope that he will turn out to be virtuous, the Founders of the republic fractured it among many. When they want to, those many can take back the control that is rightfully theirs — and over a veto if necessary.
Charles C. W. Cooke is editor of NationalReview.com and author of “The Conservatarian Manifesto.”