How Congress Is Structurally Weaker than the President and the Judiciary

People commonly complain that Congress is doing too little, being too passive while the other branches are doing much more (for better or worse). There's a lot to this complaint, I think.

But I think it's also worth recognizing that this might stem in part from one weakness that Congress has relative to the other branches (without denying that it's also stronger in various ways than the other branches): Congress is the only branch that has to operate as a supermajority.

The President is one person, and can make his own decisions. To be sure, the bureaucracy can stymie him, but he is at least formally in charge of the Executive Branch, and practically has a lot of authority over it.

The Supreme Court can make decisions by simple majority vote.

But Congress requires majorities in both the House and the Senate (and of course 2/3 majorities if it needs to override a Presidential veto). Even when they are controlled by the same party, having a majority in one for some proposal needn't mean that there's a majority in the other.

Add to that the filibuster, which isn't constitutionally required but which is an important part of the system, and the supermajority requirement to get things done (except in those situations where the filibuster doesn't apply) can be a very serious barrier. I'm not saying this to condemn the filibuster—perhaps it on balance does more good than harm—but just to observe its effects. To be sure, there have been times in the past when Congress has been quite active despite these internal checks, but when there is sharp disagreement between the parties, that disagreement can weaken Congress much more than it weakens the Presidency or the judiciary.

Given this, we shouldn't be surprised that there's much more risk of gridlock in Congress than in the other branches. But beyond that, the laws that past, active Congresses have done often give more room for activity by today's judiciary (which can interpret those laws in creative ways) and by today's executive (which can enforce those laws in creative ways, and issue various executive orders within the scope of discretion that those laws leave). The majority vote judiciary and executive chug right along, and may indeed accrete extra power for the future, even when the supermajority-required legislature is internally blocked.

Again, this doesn't tell us what to do about this problem; and there's a lot to be said for supermajority requirements for various things. But we ought to realize that the asymmetric passivity of today's Congress may stem from this structural asymmetry.

Comments

[Frank Drackman]

As the Tech Geeks like to say,
"It's a feature, not a Bug"

and watching Hakim the Bad Dream (Does he know he's named after a (horrible) Egyptian Rifle???? (Like most Egyptian Military gear, "Never fired and only dropped once"
droning on and on, and he started talking about "His Husband" and how he wouldn't be able to get his Seizure Medication(well maybe that's his problem, it should be ANTI Seizure Medication), and I thought wow, this will make some news, he's coming out, unlike Corey Booker and Lindsey Buckingham-Nicks-Graham,
turned out he was reading from a Constituent's email

Frank

[Brett Bellmore]

I suppose the executive being unitary IS a structural advantage of some importance. Congress, if unified, holds all the cards in an inter-branch fight. But is seldom that unified.

Perhaps the problem is that most of what Congress is doing these days is on subjects where there is no national consensus that something should be done, or what it should be. It wasn't intended that Congress be capable of doing things that had no national consensus behind them, quite the contrary: It was supposed to leave such topics alone!

So, what's the real problem? I'd say it's that Congress has delegated too much of its own power to the executive. Without those delegations the unitary executive would be much less dangerous, much less in NEED of a countervailing force.

And that delegation was a choice, it wasn't inevitable.

So, in the end, they're the authors of their own relative weakness, and only they can fix it. If they ever agree on fixing it; I think they rather like being relatively powerless, it means not being held responsible, either. While they've retained enough power to keep the graft flowing.

[Lee Moore]

I thought we were in the middle of a big struggle as to whether the executive branch is indeed unitary. There are plenty of folk, well represented in the judiciary, who firmly believe that the President has no business interfering in the operations of the government.

[Bunny495]

"So, what's the real problem? I'd say it's that Congress has delegated too much of its own power to the executive. Without those delegations the unitary executive would be much less dangerous, much less in NEED of a countervailing force."

I'd say it's that Congress has delegated too much of its own power to bureaucratic agencies who tend to take poorly worded laws and bend the meaning to what the agency wants or likes. While to some extent the executive controls agencies there are entrenched bureaucrats that often are at odds with the executive.

[apedad]

Prof. Volokh, care to offer alternatives to resolve "this problem?"

We've become the richest, strongest, most influential country in the world under this system - with no close second - but somehow there's a problem?

[Brett Bellmore]

Actually, if you look at the historical record, the US developed the largest economy in the world by about 1890, and since the middle of the 20th century has actually been losing ground relative to the world economy, though we're still the largest by SOME measures.

So, it would be most accurate to say that we became the richest, strongest, most influential country in the world under the PREVIOUS system. And under the current system have been losing ground.

[Stupid Government Tricks]

I doubt the actual "system" involved had much to do with either the relative rise prior to 1890 or the relative decline following WW II. The rise was a consequence of occupying a huge continent and being flooded with immigrants whose only goal was working hard to better themselves, and the relative decline was because other countries dragged themselves out of poverty, nothing to do with anything the US did.

[Brett Bellmore]

By that theory the African nations should have been economic powerhouses. They, too, occupied a huge and under developed continent, and had few obstacles to immigration.

What you're missing is that people were immigrating here, and mostly not to Africa, in that era, because our largely laissez faire economy made moving here an economically smart thing to do. But we continued that economic growth relative to the world even in the first half of the 20th century, when we had largely cut off immigration. And after the middle of the 20th century, when we reopened the flood gates, our economy actually stalled relative to the rest of the world.

It was the economy driving the immigration, not the other way around. What really drove the economy was that we not only had the resources, we had the stable legal system combined with a relative lack of regulation that allowed you to exploit those resources.

[Stupid Government Tricks]

Bullshit. Your very first sentence is bullshit.

* If you're going to compare North America to Africa, then the proper comparison is to 1491 America, not 1890.

* North America was depopulated of natives because Europeans brought diseases with them.

* Europeans were the disease victims in Africa.

* The climate in North America and Africa are entirely different. North America encourages large scale farming. Africa does not.

[Bunny495]

"The climate in North America and Africa are entirely different. North America encourages large scale farming. Africa does not."

I can't let that pass. The Republic of Rhodesia was literally the breadbasket of Africa with large farms producing and exporting food. Without getting too far into the weeds about the reasons this is no longer true the fact is now the area now has to beg for food it can no longer produce and is unable to pay for. The country of South Africa is experiencing a similar fate due to the killing of those engaged in large scale farming.

[Stupid Government Tricks]

Rhodesia is not all of Africa. Far more of North America is farmable than Africa.

[Rossami]

Not based on climate or soil conditions. The things that make Africa less amenable to farming (in aggregate) have far more to do with infrastructure and human institutions than natural conditions.

Yes, there is a whopping great desert in the north of Africa where little grows. There's also a whopping great desert in southwest NA where little grows. Conditions are not identical but when aggregated to continental level, they are similar.

[Stupid Government Tricks]

I doubt jungle is as easily cleared for farmland as forests. There aren't nearly as many rivers in Africa as North America.

[Bunny495]

Again I can't let that pass, you FAILED again. AI tells me

Summary:

Desert: Roughly 38% of Africa's drylands (which constitute 45% of the continent) are hyper-arid or desert, meaning a significant portion.

Jungle (Rainforest): Approximately 13% of Africa is covered by rainforests.

Good Farmland: Africa has 60% of the world's uncultivated arable land, indicating vast potential. However, the amount currently producing at high efficiency is much smaller due to a range of challenges.

It's clear that Africa is dominated by drylands, with rainforests in specific regions, and a huge, largely untapped potential for agricultural development.

[Stupid Government Tricks]

It's also clear that Africa's "arable" land is not good enough to attract much usage. There are two choices: the land is pessimal, or the farmers are. I prefer to blame the land than the people.

[TheAmazingEmu]

I do think the idea of inherent powers of other branches is also a contributing factor. There's an argument that the President's executive power is the power to execute the laws Congress passes. However, there's this idea that the President has inherent executive powers not enumerated. On top of that, there's the idea of the unitary executive where he can act unilaterally and not through Congressionally created department heads (and can fire those heads at will). So the President has dynamism of action and authority to act when Congress can't.

That is on top of the fact that Congress can become easily paralyzed through parliamentary rules (both the modern filibuster rule and older quorum rules) or split party rule. Those things, I'd argue, are features not bugs, but do also limit the power of Congress.

The unfortunate fact is, as the powerlessness of Congress became more established, the idea of inherent powers of both the courts and the President became aggrandized. This mutually reinforced the problem to the point that Congress often delegates what little power it still has or expects to be lead by the President on policy rather than leading policy.

[Brett Bellmore]

It's a natural product of the regulatory state, unfortunately. Congress just doesn't have the sheer bandwidth to pass as laws all the regulations a comprehensive regulatory state demands, so if there's going to be one, it has to delegate to institutions that do have the bandwidth. And the way our government is set up, that means executive branch agencies.

The Constitution simply wasn't written to run a regulatory state under, or for this degree of centralization of power under the federal government. It was written for a federal government that would defend the nation, maintain a free trade zone, and handle external matters, and otherwise leave everything else to the states to do.

[Mr. Bumble]

Exactly.

[Sarcastr0]

I don't think it's right to compare the branches political power with one another, like there's just some single continuum. Power isn't so simple.

Congress has a ton of power in it's specific area. It's a deliberative body, so it's slow, but that doesn't take away it's authority when it gets moving.
The President has a ton of power in their specific area. They move more quickly, but that doesn't mean they have extra authority to do stuff within Congress' area.

These days that formulation is under plenty of strain thanks to some knuckleheads going in for rule of men not laws. But it remains true.

[Brett Bellmore]

Congress, constitutionally, is the more powerful branch, but they have delegated a lot of that power to the executive. And the executive inherently is unified, being one person, while Congress is usually too divided to decisively exercise the power it does have, or reclaim the power it delegated.

[Sarcastr0]

Congress retains all the authority it delegated.

Power is not a metric; this whole comparison thing doesn't work between the branches of government in the US, each of whom has power that differs in process and kind from the others.

[Jmaie]

Congress has the power to (easily) reign in any president, if they cared to. The issue (IMHO) is that they've lost sense** of themselves as independent branch of government. The entrenched party system has removed any willingness to guard their power, party loyalty trumps all.

(**Maybe congress has never had any such sense of self, not my field of expertise.)

[Aubrey LaVentana]

Perhaps Congress should pass a budget before the Fiscal Year begins.

[Stupid Government Tricks]

Congress has lost power because Congress gave away so much power. So much easier to impress voters by yelling at the President and the bureaucrats than actually take responsibility. So much easier to haul bureaucrats before the cameras and berate them instead of learning anything.

I can think of only one way for Congress to grow a spine: get rid of the President. The Senate already has to approve major officer nominations, so make them interview and hire them too, instead of this bizarre world where Congress gets to yell at them in front of the cameras but the President is their boss. If Congress has to truly hire and fire them, they couldn't dodge responsibility so easily.

This applies to the military Commander-in-Chief role too. If Congress wants to start a war, hire a commander for that role and nothing else. Don't sidetrack him with setting farm quotas and berating Harvard.

If Congress doesn't like the way the various bosses are coordinating, then Congress can fire and hire and send them different marching orders. But all they are doing now is shouting from the sidelines, like spectators at a sportsball game. They haven't even got as much skin in the game as parents at a T-ball game; they are just noisy bystanders.

I would also require all legislation pass by 2/3, to force them to cooperate like adults instead of blaming each other and relying on Daddy President to get anything done.

[Brett Bellmore]

That would require major constitutional amendments to do, and constitutional amendments require super-majority votes in Congress.

You'd never get that out of Congress, and if a convention proposed it, I really doubt it would be ratified.

I think we're going to muddle along with our increasingly irrelevant to the actual running of government constitution, until something breaks so badly that we just start again from scratch. Probably when our currency crashes due to mounting debt.

[Stupid Government Tricks]

I know it will never happen. But Congress is never going to stand up for itself either. You're right about muddling along. I had always assumed the end would come by running out of borrowed money, but the last few Presidents have shown something else: it takes so long to actually get new regulations out of the starting gate that the next President gets to unwind most of them before they start. The result is more and more stasis in government, and more and more hesitation in business because they can't plan ahead. We'll still run out of borrowed money and prune spending the hard way, but by that time, government might be so slow that there could actually be more freedom.

I'm thinking of Woodrow Wilson's stroke primarily, where the new Fed was mostly hog tied and had to wait ten years to bring on the Great Depression. But the Panic of 1907 comes to mind too, triggered by SF rebuilding after the earthquake and fire, Germany and Britain borrowing to feed their naval arms race, the farm cycle needing money for planting, and shenanigans with silver. It was prolonged because idiotic government rules forbade branch banking and required deposits with the Fed which made shifting money slow, and finally ended when the banks said the hell with the rules and processed "illegal" money like paychecks and the feds turned a blind eye. Of course I've probably got details wrong, but when the money runs out now, will the government be as hamstrung as with Wilson, will people have the nerve to try to fix problems without government permission, and will government bureaucrats turn their blind eye to all that self-help?

[Brett Bellmore]

"The result is more and more stasis in government, and more and more hesitation in business because they can't plan ahead."

Actual stasis in government would HELP business plan ahead.

The problem is that the dynamic you're describing only appears to apply to rolling back regulation, and the blanket of regulation over the economy is already so smothering that many new business plans require regulations to be rolled back.

[Stupid Government Tricks]

I don't imagine too many businesses want to bet big investments on projects which will face one delay after another as courts and regulators change their minds. Who's going to waste money a 10 years building a nuclear power plant when executive orders can add years of delay? Or ramp up domestic production to take advantage of blocked imports when Trump may negotiate away those high tariffs on his next whim, and courts may block him for years?

[Incunabulum]

You would want someone like Nancy Pelosi in charge of everything - despite 99 percent of the country never being able to vote for her?

[Stupid Government Tricks]

Oh, nonsense. Try reading. Is Nancy Pelosi 2/3 of Congress?

Dumb, dumb, dumb.

How do you come up with such nonsense?

[Riva]

The judiciary is constitutionally supposed to be weak. But not so much these days with judicial insurrectionists feeling their oats.

[bratschewurst]

Once upon a time (and it wasn’t that long ago), the conventional wisdom was that Congress had too much power compared to the executive branch. People like Dick Cheney and John Roberts spent their entire careers trying to claw back power they thought had been ceded to Congress.

Now that we have a Reichstag, everything is fixed and the President and his stormtroopers always get their way.

[Incunabulum]

There is also a presumption that Congress *should* do something. Often we're better off when they don't.

[Bob from Ohio]

“No man's life, liberty, or property are safe while the legislature is in session.”
― Gideon J. Tucker

[Sarcastr0]

CNBC: It sounds to me like the president persuaded you by saying he's gonna override some of the provisions in the bill. Is that right?

RALPH NORMAN: He's going to on the permitting drive a hard bargain. He's gonna have accountability. You'll see some executive orders.
-----
That's not a structural problem; that's just MAGA not caring about the Constitutional system we got.

[thenotoriousrbg]

I guess we're bringing back the line-item veto.

[Sarcastr0]

Ayep. Here's some bullshit excusing ignoring the TikTok ban.

"Article I of the United States Constitution vests in the President the responsibility over national security and the conduct of foreign policy. The President previously determined that an abrupt shutdown of the TikTok platform would interfere with the execution of the President's constitutional duties to take care of the national security and foreign affairs of the United States. See Executive Order 14166(EO.14166).The Attorney General has concluded that the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) is properly read not to infringe upon such core Presidential national security and foreign affairs powers."
https://www.documentcloud.org/documents/25989866-25-3980-nd-cal-response-07032025/

[Soronel Haetir]

Even without the Senate's super-majority requirements, I suspect that Congress would be weaker in these ways simply from having to get agreement from so many more people.

Imagine the House-size amendment had been ratified and that the House was constitutionally required to have 3000-plus members.

[Bunny495]

There is a lot of truth to what Brett wrote:

"The Constitution simply wasn't written to run a regulatory state under, or for this degree of centralization of power under the federal government. It was written for a federal government that would defend the nation, maintain a free trade zone, and handle external matters, and otherwise leave everything else to the states to do."

The only way a totalitarian fascist or communist government could exist is with a very strong federal government. If individual states had power over the federal government a totalitarian government would not be possible.

[Don Nico]

"with a very strong federal government."
No, it is with a strong CENTRAL government.

[Stupid Government Tricks]

The Constitution was a pretty darned good first draft, especially considering the times, but it should have provided explicit ways for states to override the feds. Whatever implicit ways they had imagined in the 9th and 10th amendments, it was too easy for federal politicians and judges to pretend there were none.

[Brett Bellmore]

It actually did: State legislatures appointing Senators, whose approval legislation and all confirmations required.

This was actually pretty good at restraining the growth of federal power, and even after all the states were letting citizens select the Senators, the vast expansion of federal power in the 20th century didn't happen until after the 17th amendment had made sure that states couldn't take that power back if sufficiently aggrieved.

Gaming out ways to fix that, I think that if you had a constitutional court of last resort that was composed of all the states' governors, it would redress the balance a bit.

But this, like any constitutional repair, requires a convention, because Congress is no longer going to originate amendments going forward. The last one they seriously originated was the DC voting amendment, 47 years ago.

With the Court largely letting them do anything they want so long as they ritually say "interstate commerce", why would they bother with amendments?

[Stupid Government Tricks]

State-legislature-elected Senators didn't disappear until 1913, I believe. They presided over the progressive federal growth after the Civil War, created the Fed, and approved the income tax.

The only way to tame the federal government is get the government entirely out of the taming. Let any citizen pay for a jury to judge what government laws, regulations, and actions do, and if they can't agree, out it goes. No court appeal, all decisions are final. Of course it will never happen, and of course there are plenty of details.

But as long as government has any say in defining its own limits, it will always grow.

[Sisu]

Prof. Gene,

There are times I read this Blog's postings and ask myself: "Why ?"

Typically, I quickly review: "It's primarily Gene's Blog, he likely doesn't read most of what various co-bloggers post (likely Gene is "too nice a guy", and doesn't want to admit he shouldn't have invited certain of “them” to be "co-conspirators"; some may not have aged well), and … if Gene were to censor all the "flatulent 'commenters'",... There’s perspective in those with limited understanding and vocabulary, ... It's Gene's blog. ... No one is forcing you [me] to read it. ... Okay. It's a source of 'thought-provoking stimuli', tolerable, sourced from (I expect) mostly actual members of 'God's creation' ... You [me] do “learn”, even if only by thinking ‘Is that worth considering ?, ,,, ‘How to answer that …?’ … ‘Why aren’t you [me] focusing on your [my] ‘more productive todos’ ?"

But Gene, you kinda triggered me with this one of your last statements above:

"Again, this doesn't tell us what to do about this problem; ..."

The Seventeenth Amendment (assuming it was validly ratified) was/remains "unconstitutional" as it undermined the foundation of this "representative republic".

One of the foundational features of the "Founders' design" was the "tension" among the feral and "(several and) united states" governments. Absent the appointment of senators by and representing the legislatures (and governors) of the sovereign states, the "representative republic" became a "democracy" (designed to fail).

There are other systemic challenges to the “Founders’ design”, e.g., “judicial supremacy” regarding “constitutional interpretation”, and a failure to remove Article. III. judges for “bad Behaviour” (which is founded in the bogus “judicial construct” of “lifetime appointment”) , as well there are innumerable other “unconstitutional, judicial constructs” (the latest being “artifact nouns”; thank you J. Neil) …