The new crisis over the “Fast and Furious” investigation — on Wednesday, Attorney General Eric Holder invoked executive privilege, denying the House Oversight and Government Reform Committee access to Justice Department documents, leading to a party-line vote citing Holder for contempt — is only the latest in a long line of fights between the White House and Congress over executive-branch secrecy, stretching all the way back to President George Washington’s use of the executive privilege in 1796.
And over that span of history, we see a curious correlation: the party occupying the White House tends to celebrate Executive Power, while the party controlling Congress tends to extoll the clout of the Legislative Branch.
So today, Republicans are in high dudgeon over what they perceive as an affront to Congress, reminding audiences that Congressional powers are listed first in the Constitution, indicating at least a degree of precedence over the other two branches. For their part, Democrats are quick to point out that not so long ago, when George W. Bush sat in the White House, Republicans were celebrating the unquestionable power of the “unitary executive.”
The real test of sincerity will come down the road at some point, when today’s Congressional Democrats join with Republicans to demand openness from the Democratic White House — or, if Mitt Romney wins this November, when Congressional Republicans join with their Democratic counterparts to insist on the full disclosure of some dicey matter involving White House Republicans. Until then, both parties can be accused of situational opportunism; as the Beltway saying goes, “Where you stand depends on where you sit.”
Meanwhile, two ominous trends continue: first, the erosion of the formal mechanisms of governance, as defined by the Constitution and by tradition, which find themselves increasingly unable to function in a hyper-pluralistic environment; and second, the rise of new kinds of institutions that are typically narrower in focus, lower in profile — and thus able to act decisively.
At present, illustrating the first trend, the big losers have been Congress and the “old line” institutions of the Executive Branch, notably the Cabinet — including the now-besieged Justice Department. That is, the institutions that are most visible to lobbyists and pressure groups, as well as to the media and the public, are the ones that are least able to function.
In fact, that’s the argument made by Doug Schoen, pollster and adviser to Democrats since 1972, in his fascinating new book, Hopelessly Divided: The New Crisis in American Politics and What it Means for 2012 and Beyond. Schoen argues that huge infusions of money and ideology have gridlocked traditional institutions, as the no-compromise tendencies of both parties are being endlessly reinforced. And he includes reams of polling data to show how both parties are more and more out of touch — ideologically, financially, and socially–with ordinary Americans. As Schoen puts it, “The system we have today, as it presently operates, no longer serves the American people.”
All that is true, and yet, we might note, the system still operates, in its own minimally accountable fashion.
We might start by considering how groups that are tight-knit and audacious manage to get their way on domestic policy. Let’s start, for instance, with the Federal Reserve Board. While Congress has had a hard time enacting a budget for years, on just this last Wednesday, the Fed made yet another bold move, extending “Operation Twist” until the end of the year, adding another $267 billion to the economy. In other words, while Congress grinds its gears in budgetary frustration, haggling over authorizations here and appropriations there, the Fed, eyeing the looming “fiscal cliff,” does what it thinks it must, piling this latest Twist on top of two Quantitative Easings. How can the Fed do it? Easy: it has just 12 voting members, guided by a strong chairman. No protracted hearings, no filibusters, no risk of a veto. In politics, power flows to those who can wield it.
Meanwhile, President Obama himself, confronting a balky Congress, has chosen to remake immigration policy by executive fiat. Last week, by announcing his own de facto DREAM Act, the President gambled that a rancorously divided Congress will never assert its own authority over border-security issues.
In that same vein, independent regulatory agencies — the so-called “fourth branch” of government that has mostly emerged since the New Deal — continue to act on their own. The Environmental Protection Agency, for instance, seems determined to press for new breakthroughs against global warming, even after Congress has consistently rejected anti-carbon legislation.
Meanwhile, the nine-member Supreme Court, which is, of course, grounded solidly in the Constitution, continues to prove that it, too, can act with dispatch. Two years ago, the Court overturned a century’s worth of campaign finance legislation in the 2010 Citizens United case, and now it seems poised to overturn the Affordable Care Act, aka, Obamacare.
In the foreign-policy realm, President is the Drone-Master-in-Chief, as well as also, seemingly, the Leaker-in-Chief. And few in Congress this side of Ron Paul seem interested in challenging his “kill list” authority. Indeed, in the wake of Libya, the policy discussion over a possible Syrian intervention seems to be a will-he-or-won’t-he discussion over Obama’s mood, as opposed to any wondering as to whether Congress will grant the President the war-fighting powers stipulated in the Constitution. And of course, everyone seems to agree that a go/no-go decision about military action against Iran is up to Obama. Why should this President worry unduly about Congress when no president has asked Congress for a declaration of war since 1941?
Is this what the Founders intended? Is this the best way to run a government–or a country? Of course not. But here we are.
Those searching for historical perspective on these concerns might consult James Burnham’s half-century-old Congress and the American Tradition, a volume tracing the decline of Congress back to the beginning of the New Deal, when Congress began delegating its authority to the enlarged bureaucratic state. Burnham eloquently laid out the argument for Congressional power as a necessary counterweight not only to the Executive Branch, but also to the forces of what he called “democratism” — that is, appeals to public opinion outside of Madison’s framework. Burnham, always tending toward gloom, declared, “Congress will not survive unless the members of Congress, or a sufficient portion of them, have the will to survive.”
Significantly, Burnham, a founding editor of National Review, published his book in 1959, when Republican Dwight Eisenhower sat in the White House and the Democrats controlled both chambers of Congress by wide margins. In other words, he wrote at a time when more power for Congress meant more power for liberalism, and less for conservatism. Such “argument against interest” is the hallmark of true principle; by contrast, that sort of intellectual rigor seems scarcer today.
Instead, Burnham was looking to the long term, declaring, “To keep their political liberty, Americans must keep and cherish their Congress.” At a time when public approval of Congress is in the teens, such cherishing might seem like a lot to ask, but then, the best conservative thought has never worried much about popular passion. The stakes for the Republic are higher than that.
James P. Pinkerton is a contributor to the Fox News Channel and a TAC contributing editor. Follow him on Twitter.