Is a Streamlined Legislature the Answer to an Overbearing Executive?
Writing in today's New York Times, Yale political scientist Jacob Hacker and Yale law professor Oona Hathaway argue that Congress has inappropriately ceded its constitutional powers to the executive branch on issues such as fiscal policy, the war in Libya, and regulation of greenhouse gas emissions. But the solutions they propose, which are aimed at streamlining congressional procedure, would not necessarily help return presidential authority to its proper limits:
Legislative obstacles like the debt ceiling are a source of mischief, not precaution. They aren't found in the Constitution; they were put in place by previous Congresses seeking to tie the hands of their successors. Far from encouraging more responsible governance, they often have the opposite effect.
Unnecessary supermajority requirements are another culprit—the Senate filibuster chief among them. It has been transformed over the last generation from an extraordinary step taken by disgruntled minorities into a hard-and-fast "rule of 60" that makes compromise extraordinarily difficult. And when Congress fails to meet this extra-constitutional threshold, it is no surprise that the president tries to work around it.
Hacker and Hathaway are right that the debt ceiling and the Senate's current cloture rules are not constitutionally required, but that does not mean they are bad policy. Any debt reduction plan that extends beyond the next year or two seeks to "tie the hands" of future legislators in some sense (although they can always untie their own hands if they really want to), and the debt ceiling panic, however artificial, seems to have motivated President Obama to support "cuts" (compared to projected spending increases) he otherwise would have shunned. By contrast, letting the president borrow additional money at will, as Mitch McConnell's "Plan B" (traces of which survive in the current debt deal) would have done, is an abdication of congressional authority, not an assertion of it. Likewise, supermajority requirements make it harder for the Senate to get things done, but they also make it harder for the president to impose his will.
More generally, Hacker and Hathaway minimize the president's responsibility for the current imbalance, making it sound as if his lawless unilateralism has been thrust upon him by circumstances:
The two-step begins with a Congress that is hamstrung and incapable of effective action. The president then decides he has little alternative but to strike out on his own, regardless of what the Constitution says.
Congress, unable or unwilling to defend its role, resorts instead to carping at "his" program, "his" war or "his" economy—while denying any responsibility for the mess it helped create. The president, on the defensive, digs in further.
Yet the first example Hacker and Hathaway cite to illustrate this phenomenon, Obama's unauthorized intervention in Libya's civil war, does not show a president reluctantly acting on his own because Congress can't get its act together. It shows a president who cares so little about the constitutional limits on his powers that he does not even bother to ask Congress to approve a military assault on a country that has not attacked us and poses no threat to the United States. "Some say," Hacker and Hathaway coyly write, that "the president didn't try very hard to get Congress to agree to the intervention…because he didn't think he had the votes." Didn't try very hard? He didn't try at all. And who, aside from U.S. presidents and rebellious adolescents, thinks it's OK not to ask for permission because the answer might be no?