Trump’s Defiance Is Destroying Congress’s Power

More than once since the Democrats captured the House of Representatives in the midterm elections of 2018, President Donald Trump has taken to Twitter to express his irritation at “presidential harassment!” Undoubtedly, he is not the first occupant of the Oval Office to feel that way, but his response has been different. The Trump administration has tended to adopt a posture of maximal presidential obstruction of congressional investigations into the conduct of the executive branch and the individuals surrounding it. That defiance has culminated—for the moment—in White House Counsel Pat Cipollone’s letter to Speaker of the House Nancy Pelosi declaring that the administration will not cooperate in any way with an impeachment inquiry that it regards as “illegitimate” and “constitutionally invalid.”

That level of defiance is not healthy, and it might not end with the Trump administration. Congress and the White House have a tense relationship, and future administrations might well choose to build on rather than repudiate the Trump example of how to respond to a hostile Congress. If Trumpian defiance works, then it might well be repeated.

The basic purpose of congressional oversight can get lost in the fog of partisan combat. The U.S. Constitution does not vest an explicit power of oversight or investigation in Congress. The Constitution vests “all legislative Powers herein granted” to Congress, but investigative powers are not mentioned in the text, and investigative powers are not clearly legislative in nature. Nonetheless, judges and politicians have long understood legislatures to have the authority to do some investigative work. The English Parliament and the colonial state legislatures had exercised such powers, and the U.S. Congress started to exercise such powers soon after the ratification of the Constitution. C

Congress needs the ability to exercise oversight of executive-branch activities and conduct general investigations into the state of the world in order to perform its legislative role. If Congress is to make informed policy, it needs to gather facts about the problems the country faces and the policy solutions that might be available, as Brianne Gorod wrote in The Atlantic last month. If Congress is to make reasonable decisions about what funds ought to be appropriated from the public treasury or what existing policy ought to be modified, it needs to be able to learn how the government itself is functioning, how government funds are being expended, and how laws are being administered.

More generally, legislative oversight of the executive branch has also been understood as part of the constitutional structure of fragmented power and accountability. If government power is highly centralized—in a king, for example—the preservation of liberty and good government depends on the possibility of creating countervailing institutions that can monitor what the government is doing and call it to account. Elected legislatures arose in part to serve as the people’s eyes and ears in a nation’s capital. It is no surprise that in a modern context, authoritarian leaders work to muzzle such institutions so that their own conduct cannot be easily scrutinized or checked.

In the middle of the 19th century, the English philosopher and liberal reformer John Stuart Mill had come to doubt how well an elected legislature could actually make informed policy decisions and govern, but he thought the oversight function of the modern legislature was its most essential function.

The proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfil it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors. This is surely ample power, and security enough for the liberty of the nation.

Congress must also be able to engage in investigations to perform particular non-legislative tasks that the Constitution has entrusted to it. When the Senate is called upon to ratify a treaty or confirm a nominee for an office, it must gather information to help it determine whether it should accede to the president’s wishes. When Congress considers whether it should authorize the use of military force against another nation, it must take steps to determine whether such military action is warranted or advisable. When the House contemplates whether it should exercise its sole power of impeachment, it must inquire into the conduct of government officers to determine whether anything is amiss, and whether impeachment and removal are the proper remedy.

Presidential administrations are often the targets of such investigations, and presidents are not always eager to cooperate with them. Claims of executive privilege have been a common basis on which presidents have asserted that there are limits to how far they should cooperate with congressional investigations. Like congressional oversight, executive privilege is not mentioned in the Constitution, but has instead been inferred from it as a necessary implication of the president’s constitutional responsibilities and the effective functioning of the separate branches of government.

When the House of Representatives balked at passing a statute needed to help implement the controversial Jay Treaty of 1795, it asked the president to supply all the communications relating to the negotiation of the treaty to inform its deliberations about whether to adopt the legislation the president wanted. George Washington responded that it was his “constant endeavor to harmonize with the other branches” of the government, but that some of the requested documents were sensitive. The House had no proper right to such documents, and the president had no duty to provide them. James Madison, then serving in the House, responded to Washington’s message by insisting that the president could only appropriately assess the executive branch’s own interest in those papers, but he “ought not to refuse them as irrelative to the objects of the House,” which was something that the House alone could properly judge. In the end, they compromised, and the House passed the desired bill.

The first president and the Fourth Congress were grappling with some basic constitutional and political problems that continue to bedevil the 45th president and the 116th Congress today. Washington was confronting the emergence of the first divided government, in which the House majority was in organized opposition to his own administration, a situation that Washington came to regard as threatening to the very foundations of the republic. An opposing party is particularly motivated to make unpleasant demands on the presidential administration and to scrutinize its every action with great skepticism, and presidents are often inclined to think that an opposing party is behaving unscrupulously and unfairly. At the same time, presidents can often rely on their partisan friends to go easy on them and not be too aggressive in exposing the administration’s problems (and in his case, Washington benefited from a Federalist Senate that was willing to ratify the Jay Treaty despite the objections of the Jeffersonian opposition, which held more seats in the House).

Washington and Madison were also confronting a fundamental question in the American constitutional system about who should be able to judge the constitutional rights and responsibilities of the various branches of the government and what tools Congress had available to it to compel a reluctant executive to cooperate with its inquiries. They left those questions unresolved, and they remain unresolved. Both the House and the president insisted on their own authority to judge their own constitutional responsibilities, but both denied the authority of others to judge those responsibilities. The president could reasonably assert executive privilege, but he could not reasonably tell the House what information it did or did not need to perform its own duties. The president had control over the information that the House wanted to examine, but the president needed the House’s cooperation to advance the policies he desired.

The system has worked through give and take. Both branches of government have recognized that they should not push things too far. Both branches of government have recognized that there were deals to be made to overcome impasses. Madison in the House understood that some information did in fact need to be kept confidential if the president were to be able to perform his constitutional functions on behalf of the nation. Washington in the White House understood that interbranch cooperation and concessions would be necessary to keep the government functioning, and that as a practical matter there were things he needed from the House and so had to find ways to satisfy its members.

Cipollone’s letter to the House could not be more distant from Washington’s letter to the House in tone, substance, and attitude. Cipollone’s letter reflects the intense partisan divide in contemporary politics and the distrust that has grown up between the Democrats in Congress and the Trump White House. It also reflects a sense that the House and the administration have reached the endgame. James Madison’s House had some leverage over the Washington administration because it had something that the administration wanted, and there was some realistic possibility of reaching an accommodation that could satisfy both sides. Pelosi’s House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.

Congress has some capacity to pressure an administration to comply with its subpoenas by turning to the courts or even using its inherent contempt power to detain an uncooperative witness, but its more substantial weapons have always been political. Congress can refuse to adopt policies that an administration wants. The Senate can refuse to confirm nominees that the president wants to see seated. Congress can refuse to provide funding for White House priorities. At the extreme, the House can vote to impeach and the Senate can vote to remove officers who stonewall congressional investigations.

Congress is often reluctant to use those constitutional weapons, in part because there will be collateral damage. Congress also wants laws passed, the government funded, and vacant offices filled. The stakes of a particular dispute between the branches are not always high enough to make those costs worth bearing. The Trump administration can credibly threaten complete noncooperation with the House because it does not think there is much to be gained by cooperation, and in those circumstances Congress will have lost an important part of its leverage over the White House. The challenge for the House is in demonstrating to the administration that there are still things to lose, and perhaps still things to be won. And ultimately, as Madison himself noted, if certain issues cannot “be adjusted by the departments themselves,” then “there is no resource left but the will of the community.” The two sides can plead their case to the electorate and pray the voters can resolve the disagreement.

Keith E. Whittington

https://www.theatlantic.com/ideas/archive/2019/10/trumps-defiance-destroying-congress/599923/