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The Problem with Legislating from the White House

It’s long past time for Congress to be more assertive about lawmaking and leading.
February 16, 2021
The Problem with Legislating from the White House
The south side of the White House is seen behind layers of fencing less than 24 hours before Election Day November 02, 2020 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Way back in Donald Trump’s presidency, lo those many days ago, it was not unusual to hear worries, solemnly expressed, about the out-of-control executive branch. Trump’s willingness to aggressively wield the powers of his office, such as by diverting defense spending to pay for his southern border wall, or by whipsawing U.S. trade policy on the grounds of dubious “national security” justifications, were considered lamentable. His desire to make policy by presidential tweet, outrageous. Congress’s failure to effectively check these behaviors was regarded as a pusillanimous abdication of constitutional responsibility.

Not without reason, some expressed high hopes that the new boss would not be the same as the old boss. President Joe Biden, after all, spent most of his adult life as a U.S. senator. Described by the New York Times as “a consummate Washington institutionalist,” Biden probably has more reverence for Congress than any president since Gerald Ford. Preaching a message of unity and normalcy, it seemed conceivable that he might try to work through Congress rather than around it, thereby helping to revive the First Branch as a source of political compromise and mutual accommodation.

Early signs from the Biden administration are not promising. Biden came out of the gate issuing a bevy of executive orders and declaring new policy directions, but that in itself tells us little. Every president returning control of the White House to his own party can be expected to take such actions. If Biden’s early unilateral actions tilted somewhat farther to the left than his pronouncements as a primary candidate might have led one to expect, that might still not tell us very much about the relationship he expected to forge with Congress.

But there are many worrying signs that the policymakers on both ends of Pennsylvania Avenue continue to think of the executive branch as the only place real policymaking is going to happen, such that Congress’s most important function is influencing the president and his subordinates.

Take the much-discussed example of student loan forgiveness. Biden, through executive action, has already extended the Trump administration’s policy of deferring student loan payments during the COVID-19 pandemic. Now he is considering whether to unilaterally cancel large amounts of student debt held by the federal government; proponents of the move would like to see him cancel the entire outstanding balance of $1.6 trillion. Biden has expressed some reservations about taking such an action, as well as suggesting that debt relief ought to be capped at $10,000 per person. But, far from admiring their president’s sense of restraint, congressional Democrats are trying to convince him to cancel up to $50,000 per person.

Politico recently reported that Chuck Schumer seeks “to build a groundswell of outside pressure on Biden to move ahead with executive action on student loans.” Pause to consider that sentence. Chuck Schumer doesn’t work for an advocacy group. He is the new Senate majority leader, the person most capable of ensuring that student debt is addressed by Congress. Instead, he and Senator Elizabeth Warren will not be satisfied unless and until Biden discharges massive amounts of student debt—that is, confers a benefit that would disproportionately go to the upper-middle class while doing little to boost the economy—with “the flick of a pen,” without Congress needing to debate the merits of the policy, nor indeed to trouble itself further on the subject.

Or turn to an issue near the very top of the left’s agenda, climate change. Surely, on an issue so near and dear to the hearts of their voters, Democratic representatives must be eager to push something through Congress. And, indeed, Senator Bernie Sanders (I-Vermont) and Representatives Earl Blumenauer (D-Oregon) and Alexandria Ocasio-Cortez (D-N.Y.) did rush to introduce legislation that would require President Biden to declare climate change a national emergency, the better to unlock various executive powers that could be applied to the problem independently of Congress. Schumer has joined in calling for such an emergency declaration.

Why, you might ask, would Congress trouble itself to pass a law importuning the president to take an action, rather than simply change the law to require such an action? And why would they ask Biden to proceed by precisely the sort of strained emergency declaration they found so objectionable in Trump’s hands, in spite of the manifest arguments against such a move?

The answers are depressing. Responding to Trump’s uses of emergency declarations, these members want to show their most partisan constituents that turnabout is fair play. Like the people who made similar requests of Donald Trump, they are ready to cast themselves as supplicants to a kind of royal authority, the kind that might say, “I alone can fix it.” They do not worry about damaging their own institution’s standing because they have already internalized the idea that Congress is a secondary institution, at best a kind of helper to the people in the executive branch who make the real decisions.

All of my characterizations to this point run into a standard objection: The key to understanding Democrats’ preference for executive action is the immovable obstructionism of Republicans in Congress, demonstrated beyond a shadow of a doubt during the Obama administration. Whenever 60 votes are required in the Senate, congressional action becomes well-nigh impossible. This is why most congressional activity right now is centered on the budget reconciliation process, which allows tax and spending changes to proceed (once per year) with only 51 votes. Democrats are simply being realists this time around.

Although this objection is widely believed, it is rooted in bad empirical evidence and a basic misunderstanding of Congress’s purpose.

In this conception, Congress is nothing more than a vote-counting body that reflects the outcomes of recent elections and translates them into working majorities—or, in the case of the filibuster-encumbered Senate, working supermajorities. The idea of bipartisan support for legislation is dismissed as unrealistic, or at least an anachronism; it may have happened once upon a time, but not in the era of cutthroat partisan competition.

As political scientists Jim Currie and Frances Lee have shown in their recent work, the evidence for this supposedly “realist” outlook is simply wrong. In the New York Times they write: “Since 2011, 90 percent of new laws that cleared the House and 75 percent that cleared the Senate received positive votes from at least a majority of minority party members.” That is, even in the conflictual 2010s, most legislation that passes gets the support of most members of the minority party. This pattern holds for the most important legislation. Important laws passed by determined majorities, over the nearly unified opposition of the minority, are exceedingly rare—although of course that rare category does include such famous laws as the Affordable Care Act and the Tax Cuts and Jobs Act.

This brings us to a second objection to the idea that Congress should be more assertive about legislating and leading, which goes like this: Even if compromise is possible, and even if the American people apparently want to see it, are we so sure that it is desirable? Won’t securing the cooperation of the other party force our side to sully itself?

Those who think in this way, who basically want their party to operate as if they were in a Westminster parliamentary system, often stress the filibuster as the one thing standing between them and a realization of their party’s righteous agenda. That is misdirection, plain and simple. If the members of the majority party care deeply about passing some law, and the filibuster is the only obstacle, they will do away with the filibuster. In fact, it is not so clear which pieces of legislation supposedly have the ardent support of 51 senators but no possible hope of getting the support of 60 senators for cloture. The participants in the debate surrounding reconciliation sometimes pretend to be looking for such policies, at least within the universe of things that can be characterized as tax and spending decisions. But in fact, given the hard partisan edge to their deliberations, the process is not much of a member-driven search. Instead, it is being used as a way to force a vote on large portions of the administration’s favored agenda, Westminster-style.

At a more basic level, taking it for granted that every legislator will merely line up with his or her party on important legislation ignores the most important purpose of Congress in our constitutional system. Legislators are supposed to poke and prod at difficult issues until they find an approach that a large coalition can agree on. In other words, Congress is precisely the forum in which we are supposed to search for what unifies us, in meeting the challenges that face the country. If we don’t look, we can’t find it. To suppose that “unity” instead inheres in doing what the president wants is an abandonment of Madisonian government. Under neither party is this an attractive way forward.

Falling back on executive-driven government when attempts to work through the legislature have failed makes a certain amount of sense; if you can’t be with the law you’d love, love the rulemakings you’re with. But what makes this moment so frustrating is that we’ve skipped straight to the circumvention, and this is supposed to be regarded as the mark of sophistication and practical wisdom. Pushing through what you can is the order of the day, never mind if blatantly shutting the other party out of policymaking is likely to make its members implacable opponents of the policies pushed through in this way.

Can anything break us out of this dynamic?

It seems that nothing short of a deep reordering of our politics will do the trick. Some party will need to redefine itself such that it aims to build a coalition of something more like 55 percent of the American people than 50 percent plus one. In 2016, if you squinted hard enough, it was possible to imagine Trump leading such a redefinition of the Republican party. But the pivot never came; he had neither the ability nor the inclination to follow through on his rhetoric of building up America for the working class.

In 2020, it was easy to think that a unity-preaching president taking office in the midst of a pandemic that has ravaged all Americans might do the trick, especially in the wake of Trump’s depredations. Early in 2021, if you squint hard enough, it’s still possible to imagine this—Biden’s administration is very young, after all, and who knows how much goodwill he might reap if he presides over a decisive victory over the pandemic and an economic rebound. Perhaps he could channel that positive energy into an attempt to build a broader coalition, and not only by electoral means.

It is easier, unfortunately, to imagine that our turn away from legislative compromise and toward executive-dominated governing will be with us for at least another election cycle, during which time it will come to feel more and more like this is the only way American politics can be. Our constitutional structure says otherwise. Our history says otherwise. A sense of hopefulness about the country’s future says otherwise. At some point, the dam will break.

Philip A. Wallach

Philip A. Wallach is a resident scholar at the American Enterprise Institute and the author of Why Congress (Oxford University Press, 2023). Twitter: @PhilipWallach.