President Donald Trump has tried to unravel restrictions on presidents that Congress added in the wake of the Nixon administration and the Watergate scandal, a push that experts say comes at a time when growing partisanship has left Congress ill-equipped to respond.
The Trump administration has withheld congressionally mandated funding, fired more than a dozen inspectors general meant to watchdog the executive branch and fired without cause an ombudsman for federal workers, and more.
So far, opposition from the Trump administration moves has come from court challenges and not from Republicans who control both chambers of Congress, who have largely kept quiet any misgivings about Trump testing the bounds of executive power.
Sen. John Cornyn, R-Texas, said that Trump’s “trying to test the limits of executive power” but it will ultimately be up to the Supreme Court to decide — and he pointed out that the justices have recently ruled in multiple cases that Congress placed too many limits on the president’s authority.
“Right now, we’re involved in a number of test cases to see how far the president’s authority extends, so it’s kind of hard to know how all this will end up until we get some definitive action from the courts,” Cornyn said.
Democrats and a handful of Republicans have urged the chambers’ majorities to take action to preserve the power of Congress. In a speech last week, Sen. Richard J. Durbin, D-Ill., said that he needed to be “brutally honest” about Trump’s actions to fire inspectors general, potentially ignore court orders and more.
“President Trump is testing the limits of our Constitution like they have never been tested in my lifetime,” Durbin, the top Democrat on the Senate Judiciary Committee, said.
Rep. Jamie Raskin, D-Md., the House Judiciary Committee’s ranking member, said that without resistance from Congress, Trump has essentially dared the courts to stop him.
“I mean, a lot of the pushback to Watergate reforms has not been through the formal parliamentary mechanisms. It’s just been riding roughshod over them,” Raskin said. “They didn’t come to Congress and say they wanted to abolish the Inspector General Act. They just sacked all the inspectors general.”
Raskin said that courts are “scrambling” to keep up with Trump’s actions and if Republicans don’t act soon Congress will be severely weakened.
“Somehow we’ve got to get the pendulum to swing back toward legislative and lawmaking power of the purse. If we don’t, we risk collapsing into some other kind of quasi monarchical or autocratic system,” Raskin said.
Sen. Lisa Murkowski, R-Alaska, told NBC News last month that the Senate has risked giving up its power to Trump in the last few weeks.
“When the executive basically blows by Congress, or rolls right over Congress, and we allow that, we’re ceding our responsibility,” Murkowski told NBC News.
Some Republicans see nothing wrong with the Trump administration’s actions.
House Oversight and Government Reform Chairman James R. Comer, R-Ky., criticized Democrats’ “crocodile tears” about constitutional concerns over the firing of inspectors general and other moves by Trump. Comer also said that former President Joe Biden bears blame for decisions leaving IG offices open or refusing to cooperate with investigations.
“The whole IG thing needs to be looked at. We need IGs, but I think that Biden destroyed the whole business model. So hopefully we can get some good IGs in place,” Comer said.
House Judiciary Chairman Jim Jordan, R-Ohio, pushed back on the idea that Trump’s actions, such as firing more than a dozen inspectors general, were improper.
“The Constitution is clear, I’ve said this multiple times: Article 2, Section 1, first sentence, executive power shall be vested in a president of the United States of America. It’s the first sentence, right there, the very first thing in Article 2,” Jordan said. “He runs the executive branch, and it’s not the career bureaucrats who run things in the executive branch. It’s the president.”
Changing Congress
Congress in the 1970s passed a series of laws in response to steps by the Nixon administration. That included the Impoundment Control Act, a 1974 law that places limits on the president’s ability to withhold congressionally mandated spending.
In 1978, Congress passed laws mandating the creation of the inspectors general system, creation of the Office of Special Counsel and more. Over the years, Congress has made numerous tweaks, including placing the special counsel in charge of whistleblower protections and establishing a 30-day notice requirement for firing inspectors general.
Bruce Shulman, a history professor at Boston University who has published multiple books on 1970s politics, said those changes came because of bipartisan consensus to push back on an “imperial” presidency. And, he said, the incentives for that action have largely fallen away.
Molly Reynolds, a senior fellow in governance studies at the Brookings Institution, said the motivation “involved a desire on the part of Congress as an institution to kind of stand up for itself and stand up for its role in the separation of power system.”
But partisan polarization has led to Congress’ inability to legislate and turn to the executive for results, Reynolds said.
“With the rise of both polarization and partisanship, there is this sense that doing what’s best for one’s partisan team is more important than sticking up for the institutional interest of one’s branch of government,” Reynolds said.
Congress functions much differently than it did in the 1970s, Reynolds and Shulman said. Reynolds said that until the 1990s, Democrats controlled the House with a very different and more heterogeneous ideological mix. Then came increased polarization and a changing media environment, which Shulman said acted on changes that Congress itself made in the wake of Watergate.
The congressional “Watergate babies” reduced the power of committee chairs and leadership, he said, meaning that individual members had more ties to their party identity than their status as a member of Congress.
If you think about how partisanship and separation of powers intersect, “that gives you some idea of why what we see this almost shocking willingness of the majority party in Congress to cede the prerogatives of Congress as an institution, rather than to assert them via the executive branch,” Shulman said. “Because the partisan calculus seems to be stronger than that institutional calculus.”
Shulman pointed out that the issue could come to the halls of Congress next week, when government funding runs out. Congressional Democrats have called for spending legislation to include restrictions on Trump’s actions.
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