The storming of the U.S. Capitol on January 6 was a real lowlight for Congress. At least during the sacking of Washington in the war of 1812, the White House burned alongside the Capitol. But on January 6, 2021 the head of the executive branch urged his followers to interfere with the operation of the legislative branch. The entire sequence of events is a reminder that congressional power has been receding relative to the executive branch for almost a century.
Now is the time for Congress to stand up for its rights as a coequal branch of government. It’s not only that the January 6 attack has drawn public attention to the importance of the legislature. It’s that President Joe Biden is the first career legislator to occupy the White House in nearly 50 years.
Biden’s experience and instincts will guide him into pursuing major legislation, not just governing by executive order. If Congress can find bipartisan issues on which to pass laws, and if a significant bloc of congressional Republicans chooses not to be absolutely obstructionist, we might begin the process of restoring some of the governmental balance envisioned by the Constitution.
Congress’s downward slide should matter to Democrats and Republicans alike. For Democrats, Congress represents the broad range of diverse opinion across the country. Tapping into that diversity is crucial to the Democratic Party’s conception of democracy. The president is only elected by a slim majority, most of the time, which means that executive policies typically represent the will of the electoral college, not the will of all the people. For democracy to flourish, not merely survive, Democrats should want Congress to take an active, central role in policymaking.
Republicans, for their part, tend to decry the sweeping powers of the administrative state, most of which comes under executive control and guidance. The alternative to government by regulators is government by Congress. If Congress offloads its responsibilities to administrative agencies, a growing number of Republicans see that as an illegitimate delegation of authority to the executive branch. The solution is specific, proactive legislation.
Yet despite these strong reasons for both parties to favor congressional action, Congress has been steadily losing its mojo for generations. The main reason is, of course, the growth of the executive branch from a relatively small operation as envisioned by the framers of the Constitution into an elaborate complex of permanent military operations, extensive cabinet departments and regulatory agencies, and a large White House staff that attempts to direct all this activity.
The decline of Congress, however, cannot solely be blamed on the rise of the executive. Another major factor is the increase in partisanship. When members of Congress vote along strict party lines, power shifts to the most powerful figures in the parties — who tend to be presidents or senior congressional leaders in the sway of national politics. The result is that politics becomes more nationalized, and more focused on counting wins or losses for the party of whoever is president at the time. As more than one commentator has noted, House Speaker Tip O’Neill’s dictum that “all politics is local” is no longer as true as it once was. National rather than local politics disfavors Congress in favor of presidents, the only nationally elected officials we have.
Biden is no stranger to the executive branch, having spent eight years as vice president. But before that he spent 36 years as a senator, far more time in that body than any other president and more time in Congress than any president.
Biden’s experience gives him a unique understanding of Congress. We can expect him to want to follow the example of Lyndon Johnson, who spent 24 years as a legislator and leveraged that experience to enact landmark legislation like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Even if he’s no LBJ, Biden knows that he can appeal to Congress’s sense of needing to matter. And he’s clearly not too proud of being president to share power with legislators, provided it will help him enact his priorities.
The lesson of recent decades is that without at least some bipartisan legislation, policies swerve wildly from one presidential administration to the next. A new president’s first act is to sweep away the executive orders of his predecessor and order the re-examination of his predecessor’s legislation.
That’s not enough. We need the branch of government described in Article I of the Constitution to take up more of the role for which it was designed: representing the broad public, compromising and setting policy through laws. Donald Trump was the worst president we’ve had in living memory. Here’s hoping his failures contribute to the re-emergence of a greater sense of responsibility on the part of the legislative branch. It’s time to put the “equal” back in coequal.
Noah Feldman is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”