Some years back, I fired off a forgettable social media post referencing the “three co-equal branches” of government. A friend — a smart journalist steeped in American political history — responded with a gentle correction reminding me that Congress was the “supreme branch,” befitting its Article I status in the United States Constitution.
Turns out we were both wrong, albeit for slightly different reasons.
Since the turn of the century, Congress has increasingly functioned as a quasi-parliament rather than as an independent branch of government – the legislative branch, to be precise. Rather than jealously guarding the distinct powers granted to them under the Constitution, members of the House of Representatives and the Senate, both Democrat and Republican, willingly, almost gleefully, cede authority to the executive branch whenever their party controls the White House.
Principle? Nah, just partisan preference
This phenomenon long predates President Donald Trump’s second term and the current, compliant GOP majorities on Capitol Hill, although, to be clear, it certainly extends to both (more on that in a moment.) Are there exceptions? Sure. But on this matter, exceptions prove the rule, explained Yuval Levin, director of social, cultural and constitutional studies at the American Enterprise Institute, a conservative think tank in Washington, DC.
“The president’s party in Congress just functions as the president’s party in Congress, rather than part of the separate, legislative branch,” Levin said in a telephone interview. “The opposition party functions as the anti-president’s party in Congress, and they don’t really work with each other in a way that’s separate from the president’s agenda.”
In other words, the only time lawmakers take issue with a president infringing on their constitutional prerogatives, if not outright usurping them, is when it’s the other party’s guy doing the infringing and usurping. Not very “supreme.” Not very “co-equal,” either. Perhaps “the subordinate branch” is a better way to describe Congress. (The judicial branch — Article III — is, like presidents, not at all shy about exercising constitutional power.)
‘The separation of parties has overwhelmed the separation of powers’
That the legislative branch ended up here is partly a product of moves congressional Democrats made beginning in the 1970s, and that congressional Republicans continued in the 1990s, both under divided government — with one party controlling Congress and the other the White House — to strip influential policy committees of their muscle and concentrate political power in the hands of party leaders. In the House of Representatives, this resulted in the consolidation of power with the speaker, and in the Senate, with the majority leader. Rank-and-file lawmakers were effectively neutered. Ironically, this was done to thwart executive power.
“Congress ended up, because it was centralized, becoming just a player in our presidential politics,” Levin said. Representatives and senators understand themselves, first and foremost, either as critics or supporters of the president.
Levin continued: “The separation of parties has overwhelmed the separation of powers.”
With Trump stretching the bounds of executive authority, there is a renewed focus on just how uninterested in exercising power members of Congress appear to be.
The 45th and 47th president is busy dismantling or partially disassembling government agencies created by congressional statute. And yes, Trump is threatening to ignore the “power of the purse” reserved specifically for the legislative branch, through a process known as impoundment, under which he would simply refuse to spend money as authorized under the law by the House of Representatives and the Senate. Buried in his blizzard of executive orders are yet more power grabs at the expense of Congress.
But Trump is hardly the first president to push the limits of his Article II prerogatives, nor are today’s congressional Republicans unique in their readiness to acquiesce.
Biden did it, Obama did it, Bush did it …
Democrat Joe Biden did it; recall his unconstitutional student-loan forgiveness program. Democrat Barack Obama did it; recall his “pen and phone” decision to grant permanent residency to certain illegal immigrants. Republican George W. Bush did it; recall signing statements declaring he would not enforce aspects of legislation he opposed. And not once did Democrats (in the case of Biden and Obama) or Republicans (in the case of Bush) do anything about it. Indeed, they largely cheered them the on, as is the case in some instances so far, a little more than two months into Trump’s second presidency.
Another manifestation of this trend: Congress regularly has trouble agreeing to government spending packages and typically passes legislation that leaves the details up to bureaucrats and rule makers in executive branch agencies, allowing elected representatives to avoid tough decisions and political responsibility in the event of voter backlash.
Yet another sign: the number of White House vetoes has plummeted over the years. Before this recent trend of congressional acquiescence, Republican President Ronald Reagan issued 78 vetoes in his eight years in office. As the trend gathered steam, Democratic President Bill Clinton vetoed 37 bills in his two terms. But two-term presidents Bush and Obama each vetoed just 12. There was a slight uptick of vetoes issued by Trump during his first term (10) and by Biden (13), but nothing approaching the Reagan era.
Now, we’re more like Europe
This synergy of the executive and the legislative is a feature of the parliamentary governments common across Europe and in countries like Canada, Israel and Japan. But it is entirely antithetical to the system of checks and balances — with ruthless competition for power among the executive, legislative and judicial branches — undergirding the constitutional order designed by the American Founders. At least, it’s supposed to be.
“In a parliamentary system, the executive comes from and is part of the legislative branch—no separation of powers and little checks and balances. It is essentially rule by party,” Jeff Brauer, a political science professor who teaches comparative government at Keystone College, a private university near Scranton, Pennsylvania, said. “Undoubtedly, over the past couple of decades, the US government has been acting more and more like a parliamentary system.”
Congress’ ongoing abdication of power isn’t likely to end anytime soon.
Brauer points out that voters “probably don’t understand the intricacies or differences that set the US system apart from parliamentary systems — and perhaps don’t care.” Like their representatives and senators, they want congressional pushback against presidents they oppose. But they seem to prefer submission in the case of presidents they support. In fact, it’s this preference that discourages Democrats and Republicans from telling president of their own party “no” when he overreaches.
Polarized bases, subservient Congress
Possibly, an extended period of divided government might change matters. Possibly, even, disillusionment in Congress — which apparently exists, Tom Reynolds, a Republican former member of the House of Representatives from Buffalo, New York, told me. “I talk to members all the time and I see the frustration,” he said. Yet the challenge in getting the legislative branch to reclaim its power, as Brauer noted, is that lawmakers are reacting to the perceived will of the voters.
That’s something Reynolds, who retired from Congress in 2009 and now works in government relations, understands well. He was his party’s campaign chief, serving as chairman of the National Republican Congressional Committee in the 2004 and 2006 election cycles. “What has added to this (problem of a subservient legislative branch) is a very polarized base of both parties.”
David M. Drucker is columnist covering politics and policy. He is also a senior writer for The Dispatch and the author of “In Trump’s Shadow: The Battle for 2024 and the Future of the GOP.”
