Rep. Jayapal Becomes Third Leading Lawmaker to Ask President to Run Roughshod over Congress

In late December, after Sen. Joe Manchin (D‑WV) pulled the plug on the Build Back Better Act, Rep. Pramila Jayapal (D‑WA) took to the pages of the Washington Post with a plan to “move forward” on the bill’s stalled agenda. She was writing on behalf of nearly 100 members in the Congressional Progressive Caucus, which she chairs, so you’d think she would’ve announced a new legislative strategy—maybe a political pressure campaign targeted at individual Senators, or perhaps a compromise to bridge the gap between moderates and progressives in the upper chamber. But that’s not what she had in mind.Instead of pitching a plan to fellow lawmakers, she called on President Biden “to use executive action to immediately improve people’s lives … [by] lowering costs, protecting the health of every family, and showing the world that the United States is serious about our leadership on climate action.” In other words, she asked President Biden to do what Congress failed to do, because Congress failed to do it.Thus, Rep. Jayapal became the third congressional leader in 2021 to ask the president to run roughshod over Congress. Last June, House Speaker Nancy Pelosi pressed President Biden to unilaterally continue a nationwide moratorium on evictions, even though the Supreme Court had just indicated that only Congress is empowered to do so. Before that, Senate Majority Leader Charles Schumer urged Biden to “call a climate emergency,” because “he could do many, many things under the emergency powers of the president that he can do without legislation.”Let’s unpack these congressional pleas for presidential power, which speak volumes about the backwards constitutional logic that now prevails on Capitol Hill.As an initial matter, lawmaking is Congress’s exclusive prerogative—the Constitution vests “all legislative powers” in the legislature—so how can presidents accomplish what Congress can’t?The answer is that over the last century, Congress has given away, or “delegated,” much of its policymaking power to the executive branch. These delegations take the form of broadly‐​worded laws that empower the federal bureaucracy to impose law‐​like regulations. For the most part, Congress delegates to pass the buck. When voters want something done, lawmakers could legislate policy specifics, but they’ll get blamed if they err. With delegations, Congress can escape accountability. By now, alas, Congress has ceded enough policymaking initiative to render itself expendable. When the president wants a law made, he can go it alone. All he must do is order an agency to push the envelope of its existing authority.At first, Congress tempered these delegations by competing with the president for control over regulatory policy. Over the last few decades, however, our increasingly polarized legislature has become a shell of its former self as loyalty to party has overtaken institutional pride. Simply put, half of Congress becomes a cheerleader for executive power grabs whenever “their guy” occupies the Oval Office. It’s a dangerous feedback loop: the better the president gets at exercising unilateral power, the more our divided Congress is likely to acquiesce to executive power run amok.Our obsequious Congress is eroding our constitutional design. To safeguard liberty against a concentration of government authority, the Founders dispersed power into three branches (executive, legislative, and judicial) and gave each the means to check the other. This framework is animated by “ambition,” the idea being that the people who occupy these competing institutions would jealously guard their turfs. These structural limits serve to protect individual freedom from overbearing government.The problem is that today’s lawmakers have abandoned institutional ambition. By choice, Congress plays second‐​fiddle to the president. To be clear, this is a bipartisan failure. Democrat lawmakers may be more eager in their deference to Democrat presidents—as evidenced by Rep. Jayapal’s op-ed—but Republicans are no different in practice. Congressional Republicans, for example, decided that the ends justify the means when then‐​President Trump performed an end‐​run around Congress’s power of the purse by declaring a “national emergency” to unlock funds for a border wall.The upshot is that the modern Congress suffers from an absence of self‐​esteem, leading to an imbalance among the separated powers. The president has become the lawmaker‐​in‐​chief, which is exactly the sort of concentrated authority that the Founders sought to prevent. As Madison wrote in Federalist 47 (quoting Montesquieu), “There can be no liberty where the legislative and executive powers are united in the same person.”These constitutional concerns are heightened by the relative ease of presidential lawmaking. On purpose, the Constitution makes it hard to enact laws—both the House and Senate must pass the same legislative text, and the president must sign it. Lawmaking is difficult because the Founders carried a healthy skepticism of government. Federalist 62 warns that an “excess of lawmaking” is a “disease” to which “our government is most liable.” In comparison, it’s much easier for a president to make law through regulation. All he has to do is reach for his “pen and phone.”What can be done? It’s too much to ask the president for self‐​restraint. With executive lawmaking, modern presidents are acting with ambition, just as the Founders would’ve expected. Elsewhere, I’ve written about how the Supreme Court could supply some relief, by better policing congressional delegations (and executive exercises thereof). But, again, it’s asking too much of the judiciary to fix the legislature. Ultimately, true reform can come only from Congress, which must rediscover its institutional pride.