The Root of Our Dysfunction? Congress.

Pretty much on a daily basis now, I find myself muttering or shouting, “If only Congress wasn’t broken,” or something to that effect.

I’m happy to concede that our problems have many causes. Still, my answer to the question, “What is one thing you would do to solve—or just improve—American politics and America’s mounting list of crises?” My answer would be, “Fix Congress.”

Sort of like Balzac’s famous line, “Show me a great fortune, and I’ll show you a great crime,” if you show me a big problem, I can make the case that Congress’ dysfunction either created the problem or made it worse.

This is not a partisan point, because the problem has been worsening for decades. But we might as well deal with the problem right now. Congress is controlled by Republicans—and they are controlled by the president. Whatever you think of Donald Trump’s various executive orders—I think it’s been a mix of the good, the bad, and the ugly—the simple fact is that presidents aren’t supposed to govern or legislate by diktat.

Love Trump’s Bernie Sanders’ style executive order to lower the price of drugs? Fine, you should know that it probably won’t pass muster in the courts. But even if it does, what is done by executive order can be undone by executive order. If you want price controls or any of his executive fatwahs to become the law of the land, they need to be made laws. And only Congress can do that.

Except Congress can’t—or won’t. Which is mostly fine with Trump because he’d often rather have the fight over the issue and the appearance of royal authority than do the hard work of getting legislation through Congress.

You may have noticed that the president likes to generate controversy and have people believe him when he says stuff like, “I run the country and the world.” Issuing legally dubious, evanescent executive orders serves both purposes. Reporters run around covering the orders like he’s actually done the thing he’s said he’s done, giving him the headline he craves and fomenting panic among his foes. If and when judges block him, he gets a fresh issue: “Rogue” judges are standing in his way. For his fans, the issue becomes judges exceeding their authority, not judges preventing Trump from exceeding his. And for fans and foes alike, judges are cast as partisan actors, eroding trust in the judiciary.

Broadly speaking, judges aren’t supposed to be a check on the executive on most issues. That, too, is Congress’ job via the power of the purse. It’s also the only branch that can fire a president. But it’s proven incapable of that, too. Which simply invites presidents to test or ignore their authority and gripe about “unelected judges” when stymied.

The proliferation of nationwide judicial injunctions against the executive is a problem. It’s been getting worse for decades. But why? Because presidents increasingly try to legislate via executive order—because Congress lets them.

Pick almost any issue. Trade? The Constitution gives Congress sole authority to regulate trade. But over the last century, Congress has more or less transferred that authority to the executive branch. Immigration? Making hay with the complexities of the issue helps both parties politically, but solving it through reform of the immigration laws is hard and painful. Better to do nothing. The national debt? Congress has successfully followed its own budget process only four times in the last half century, the last instance was in 1997. And only once did it manage that on time—in 1977. Congress instead relies on a slew of ugly stopgaps, continuing resolutions and omnibus bills that put spending on autopilot.

This isn’t just a wonky point about sausage-making. Congress is where politics is supposed to happen. When it fails to absorb political and partisan passions, those passions spill out into institutions not designed to absorb them.

The House and the Senate were designed to force consensus across a vast nation with diverse interests. When Congress is working properly, that’s an ugly and difficult process (hence the cliche about sausage-making). It involves fact-finding through adversarial hearings, horse-trading, and compromise. But the process and the end product has democratic legitimacy. The result earns buy-in from stakeholders and voters because the political fights are public and lengthy, requiring representatives and senators to explain and defend their positions. The bills they pass—laws!—cannot be overturned by presidents or, for the most part, by the courts. Though we’re seeing that rule tested near daily. 

The abdication of Congress’ role as the arena where political fights happen has turned the House and the Senate into a stew of de facto pundits and lobbyists of the executive branch, which steadily aggrandizes to itself authority not found in the Constitution. In short, when in doubt, blame Congress.