The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Madison Wept

And the senators said to the president, "pretty please?"


Sen. Mike Lee came up with a quite reasonable bill to curb presidential discretion to declare national emergencies and make Congress more affirmatively responsible for the actions that might be pursued during such emergencies. It might not be perfect, but it would be a significant improvement to the current statutory framework, a reasonable check on presidential abuse of emergency powers, and a step toward having Congress assume its proper constitutional responsibilities. A companion bill was introduced in the House by Rep. Andy Biggs. Such a reform should have been passed long ago, but it often takes an abuse of power to generate the political will to curb power. And sometimes that isn't even enough.

In the House, Speaker Nancy Pelosi declared that there would be no vote on any such legislation. For Pelosi, as for everyone else, partisan point-scoring is more important than reclaiming congressional power. The Republicans hardly covered themselves in glory, overwhelmingly voting to support the president's emergency declaration that was obviously made in bad faith and clearly abused the discretion that Congress had entrusted to the president. Unwilling to vote to override a promised presidential veto, Republican legislators are ill-positioned to seek bipartisan support for prospective reform to advance the interests of the institution and constitutional sensibilities.

Meanwhile, in the Senate, Republican legislators abandon Lee's plan because the president won't embrace a restoration of congressional authority. The senators require the president's permission before supporting the authority of their own institution.

But Trump decided against curbing his own presidential power, GOP senators said. . . . "This president, like any other president, is not going to give up power that Congress has given him in the past. It's been there since the 1970s. Why would this president give it up?" said a Republican senator who requested anonymity to talk about internal discussions.

Apparently the Founders forgot to provide in the Constitution any mechanism by which Congress might override a presidential veto. Oh, wait!

James Madison once wrote a fantasy novel. I always liked this passage.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.