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Situational Constitutionalism and the Congress of Collective Inaction

President Trump’s executive order on healthcare received a great deal of attention, but almost all of it emphasized the order’s short-term policy implications. Commentary from the Left ignored the constitutional implications of unilateral executive action, so if anyone was going to speak up about those constitutional issues, conservatives would have to do so.

Their record thus far has been mixed. The editors of National Review, like their liberal counterparts, addressed the policy angle, not the constitutional one. Yuval Levin, on the other hand, wrote in that same publication that officials in the administration in which he served (Bush II) doubted whether they could expand access to association health plans without statutory authorization. But, added Levin, since “The boundaries of what might be achievable by presidential directive were badly deformed by the Obama administration,” the Trump administration might achieve this goal through executive action—“even if I wish they wouldn’t.”

It is not surprising that few conservatives are expressing constitutional hesitations. As a legal matter, it is not clear that the executive order actually changes the law, as opposed to merely changing the use of discretionary powers granted to the administration by law. It is true that the cost-sharing subsidies for health insurers were halted, but Congress had not appropriated the money for those subsidies in the first place, and the Constitution forbids disbursement of money from the Treasury not authorized by appropriation.

More fundamentally, conservatives have often supported changing the law through executive order when they agreed with the results. For instance, in 2012, Republican presidential candidate Mitt Romney promised “on day one” to “issue an executive order paving the way for Obamacare waivers to all 50 states.”

Aside from the policy considerations, therefore, Trump’s actions reveal two important developments: the effect of partisanship on the separation of powers, and the ongoing decline of Congress as a representative institution.

Officeholders are increasingly prone to what some political scientists call “situational constitutionalism,” a term that originated in the 1990s to explain reversals by both parties concerning presidential war powers. Democrats supported expansive presidential military powers when FDR and JFK wielded them, then cried foul when Nixon and Reagan held the office.  Republicans defended the presidency in the 1980s, and then demanded a greater role for Congress during the presidency of Bill Clinton.

Of course, we’re talking about politics, so we shouldn’t be surprised that partisans defend the branch of government that they happen to control at the moment. But this is an important challenge to the expectations of our Constitution’s Framers. When they spoke of parties, the authors of The Federalist acknowledged that they could not be trusted because they would be “both judges and parties at the same time . . . advocates and parties to the causes which they determine,” in Madison’s words. They would not pursue impartial justice but partial interest.

What Madison didn’t anticipate was that these parties would threaten to disrupt the separation of powers. When parties are spoken of in relation to separation of powers, as in Federalist 49, Madison argues that the parties will attach to the various branches, not work across them. In contests between the branches, he predicted, there would be a “legislative party” that would dominate the other two.

For much of American history, this prediction was accurate. The conflict during the 1790s between the Federalists and the Democratic-Republicans was largely a battle between an executive and a legislative party. The struggle between the Whigs and Democrats from the 1830s to the Civil War was also a battle between a legislative and an executive party (hence the adoption of the name “Whigs” to indicate opposition to “King” Andrew Jackson).

Until the 1861-1865 cataclysm, parties buttressed the separation of powers by attaching political interests to particular offices. Clearly things have changed, thanks in large part to the dramatic expansion of national governmental power in the 20th century. Now the size of government itself, rather than the distribution of its powers, is the primary issue that divides the two major parties in the United States—a line not drawn horizontally within the national government, but drawn vertically between the national government and the states. Members of these parties are not partisans of one branch or the other, but of one level of government or the other.

That means that today’s parties align with whichever branch of government suits their temporary purposes in that struggle. (Advocates of limited government used to blame the executive for being the driver of “Big Government,” but Nixon and Reagan revealed that the President can actually spur a reduction in the size of the national government.) And it means, most importantly, that separation of powers is no longer regarded as a principle worth fighting for but as a tool to be wielded in the battle over the vertical distribution of powers.

But back to the healthcare executive order and the problems it raises. At the moment, the same party controls both political branches, legislative and executive. In such a situation, executive orders issued by the President do not present the usual dynamic of one party controlling the legislature, forcing the other party to embrace the presidency. With the Republicans controlling both, what is most evident is the ongoing decline and irrelevance of Congress itself. For here we have a President who bypassed Congress in spite of the fact that his party held the majority in both of its chambers.

Instead of a Congress refusing to act because of divided government, we have gridlock within unified government.

Consider, though, that this indicates some of the problems inherent in Congress’s original design. As is well known, the Framers designed Congress with an eye to weakening it, fearing the “impetuous vortex.” Maybe they were too successful. By enlarging the sphere of government, taking in such a variety of geographically-based representatives, our legislature is one big collective action problem—a problem exacerbated by the principle of bicameralism. Congress is built on collective inaction to avoid majority tyranny and legislative tyranny. But this makes the building of any majority difficult, even one that would promote the common good.

In the past, Americans solved this problem by strengthening the parties within Congress to provide a space for collective deliberation, bargaining, and compromise. Without a mechanism for building a loyal and cohesive majority coalition, Congress threatened to descend into chaos and inaction. It is no coincidence that when our parties within Congress were strongest, executive power was weakest. The “Golden Age of Parties” from the end of the Civil War to the beginning of the 20th century was also the Golden Age of Congress. (And the Presidents during that time were hardly emblematic of the modern imperial presidency.)

This role for parties within Congress has broken down over time, because we no longer understand it. Party leaders in Congress increasingly believe their job is to set an agenda and impose it upon the rank-and-file, rather than behaving as brokers who help their caucus come to agreement and then working to implement that agreement.

As for the rank-and-file members, they increasingly see their interests as bound up not with their party, but with serving their own individual constituencies residing in increasingly polarized districts. It is no wonder that, in contrast with parliamentary systems, which rapidly respond to changes in public opinion, we cannot get our legislature to do much of anything.

The President—regardless of party—has been happy to step into the vacuum that these developments have created. But while this ensures that policy will change in response to changes in public opinion, it creates a new set of problems that are equally pernicious. It is not good for the republic, for the Constitution, or for the people, when the President we have is a chief policymaker in an evenly divided nation. For at least the past 15 years, the President has increasingly been seen as the voice of only a bare majority, and for the rest, he is “not their President.”

The ideal response would be to rediscover the role of parties in building the internal mechanisms, within the pluralistic legislative branch, that will allow for genuine representation and facilitate coalition-building. Whether this means more open debate on the floors of the two chambers, or more robust deliberations within the party caucuses, or both, is a discussion worth having. But most important is that Congress take up the hard work and the messy business of legislative deliberation.

It is true that in such a scenario, those in the party that loses may still grumble, “Not my Congress!” But they will at least have a seat at the table and an opportunity to engage in the debate—perhaps even to gain some concessions from the majority. The diversity of the country’s interests, which is a basic principle of our constitutional framework, demands representation by multiple elected officials, deliberating, debating, and inevitably compromising to enact policy changes. The path we are on right now, sadly, is leading to deep disillusionment with our political system and with democracy itself.

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