The article below was published in The Hill on December 27th.
Congress, and particularly the House of Representatives, appears poised to assert itself in a way not seen for decades.
The legislative branch is seen by some as a weak institution, important mostly for its ability to influence the agencies of the executive branch (where the real power is). “The legislative branch,” says Rep. Trey Gowdy (R-S.C.), “was designed to be and at one point was the most powerful of the three branches. It is without question the weakest of the three branches now. Part of that is because we’ve allowed that to happen.”
Congress still has tremendous power, if it can find a way to use it. It can declare war, defund or eliminate agencies, curtail the jurisdiction of the Supreme Court, and remove presidents from office. However, the “power of the purse” has been lost to “mandatory” spending. Huge swaths of legislative authority have been delegated to regulatory agencies. Partisanship has made effective oversight of the executive branch virtually impossible. In Machiavellian terms, Congress is neither feared nor loved.
This may be about to change. Congress now has the leadership, the desire, and a plan for reasserting itself. Two key prerequisites remain: unity and a willing partner in the White House.
Speaker Paul Ryan has tremendous moral authority because he is a bona fide conservative who didn’t want the job. He cares deeply about America’s poor and has put real effort into finding new and better solutions for them. He is a serious policymaker who communicates well and does not play games. He is a walking antithesis of the congressional stereotype, and that makes new things possible—including entitlement reform.
Under his leadership, the House has developed an agenda it calls A Better Way. It is more detailed than 1994’s Contract with America and it is genuinely aspirational. It does not look or sound like a set of campaign promises. Rather, it is a true representation of what House Republicans would like to do should they ever have the chance. They now have that chance.
The A Better Way agenda declares, with an accusatory tone, that “liberty itself is at stake when any of the branches [of government] violates the separation of powers.” But it also admits that liberty “is likewise in jeopardy when a branch fails to exercise its power.” Congress, says this official agenda of House Republicans, has let its “power atrophy—thereby depriving the people of their voice.” The Republican Congress wants its power back.
The agenda is more than aspirational, however. It is also a plan. Alongside proposals for fighting poverty, reforming healthcare, and bolstering the economy are specific ideas for restoring Congress’s Article I powers and for checking the power of the executive. They include a rewrite of the Administrative Procedures Act, new “best drafting practices” to avoid ambiguity in legislative text, expedited judicial action on suits against the executive for failure to enforce statutes, new powers for agency inspectors general, the end of Chevron deference (judicial deference to agency interpretations of statute), and enactment of the REINS Act—which would require congressional sign-off before major regulations can take effect.
To accomplish this “Article I restoration” agenda, Republicans will need to be unified. Much has been made of divisions in the Republican Congress. They are, indeed, a diverse group. There are libertarians like Thomas Massie, moderates like Charlie Dent, family-values conservatives like Vicki Hartzler, defense hawks like Mac Thornberry, and fiscal hardliners like Dave Brat. This diversity is what a majority party looks like. They are unified, however, in their desire to reassert Congress’s constitutional powers.
Republicans will also need a willing partner in the White House to sign those parts of the agenda that require a presidential signature. Surprisingly to some, the Trump administration may have the closest ties to Congress in memory. Vice President-elect Mike Pence is a popular alumnus of House Leadership. Trump has also chosen Elaine Chao, the well-credentialed wife of Senate Majority Leader Mitch McConnell, to be his Transportation Secretary. Sen. Jeff Sessions, Rep. Ryan Zinke, Rep. Mike Pompeo, and Mick Mulvaney are among what appears to be a lengthening list of legislators headed to the Trump administration. Reps. Lou Barletta, Marsha Blackburn, Jim Bridenstine, Kevin Cramer, Randy Forbes, Scott Garrett, Duncan Hunter, Peter King, Tom Marino, and Thomas Massie, are all rumored to be under consideration for high-level posts. Democratic Sen. Heidi Heitkamp is also evidently under consideration.
Congress will begin early next year using devices already in its toolbox—budget reconciliation and the Congressional Review Act—to cancel or reverse many of the policies of the Obama administration. This will, for the most part, be a partisan exercise made possible by one election. Whether Congress as an institution can durably regain its place as the first branch of government will depend partly on a willing partner in the White House. It will also depend on Republicans’ ability to stay unified, to focus on what is achievable, to actually legislate and appropriate, and—perhaps most importantly—to convince the country that they are acting on principle rather than partisanship.