Rebalancing Checks and Balances

Joshua M. Javits

In this era of all-out political warfare, Republicans and Democrats have concluded that the president exercises too much power. At least that has been the consistent line of the party not occupying the White House. Republicans attacked President Obama for exceeding his authority in issuing executive orders on health care and the environment, and Democrats are now crying foul on President Trump for what they claim are unconstitutional infringements on Congressional prerogatives. Both presidents, in turn, have pointed to the need for taking action because partisan gridlock in Congress renders that branch unable to pass vital legislation.

As a result, the political parties have undermined the constitutional design of checks and balances and separation of powers by obstructing the legitimate powers of both branches of government. In 2016 Senator McConnell and the Republicans frustrated the president’s authority to appoint a Supreme Court justice and today are racing to confirm a Republican President’s pick. President Trump has obstructed congressional oversight responsibility by moving appropriated funds to his pet projects and by preventing compliance with investigative congressional subpoenas.

The checks and balances of our three branches of government are designed to protect the rights of the citizenry by preventing one branch from running roughshod over the other. However, these checks and balances can work only if adequate separation of powers exists between the branches and each branch adheres to its functions and limits.

Without accepted boundaries, the executive branch is, in effect, legislating and the legislature is usurping executive branch powers. The third branch, the judiciary, has an institutional and a jurisprudential aversion to adjudicating fights between its sister branches; which aversion limits its effectiveness. The central problem is government’s inability to deal with major issues such as infrastructure, immigration, health care and the environment, which both political parties recognize as national problems urgently in need of comprehensive approaches.

How do we get beyond each branch of government usurping the other’s constitutional authority? Congress could limit the executive branch’s ability to invade its turf if it did its job with diligence and effectiveness. For far too long, Congress has given broad authority to the executive branch and its powerful agencies to interpret and apply the laws the legislative branch passes. Far more specific legislative language would restrain administrative agencies and put Congress back in the drivers’ seat. More intensive oversight and greater flexibility to amend legislation would return authority to Congress keep legislation relevant and able to meet changing circumstances. In other words, a tighter reign over legislation would keep the executive branch, or an increasingly ideological judiciary, from usurping legislative intent and application.

Congress needs to get its own house in order. It must deal with the absolute control over the legislative process by congressional leaders that renders individual members’ actions and committee deliberations meaningless. In addition, Congress needs to return to “regular order,” the process by which committees create and pass legislation based on comprehensive study and give and take. Finally, the congressional work schedule and approaches that result in omnibus rather than focused legislation must be changed.

Getting its house in order will require Congress to pass internal reform legislation in 2021, as it did so in 1940, 1970 and 1994 based on work by specially established Joint Committees on the Organization of Congress. After getting its house in order, Congress should be positioned to tackle the major national issues in a comprehensive way that also reestablishes congressional authority.

To do any of this, Congress must employ the art of principled compromise. As no less an ideologue than Barry Goldwater noted, “Politics and governing demand compromise.” A potential impediment to reform is political self-interest. If Biden is elected, wholesale retribution by the Democrats is a likely scenario. However, the turmoil the country has lived through and what it may yet have to endure to realize an electoral outcome could lead to a public desire for effective legislating and respect for traditional separation of power norms.

On the Republican side, self-interest in playing a role in government after a catastrophic electoral defeat (if such may occur), may motivate that party toward reform. If that defeat occurs, the GOP may be forced to reevaluate a greater role for the federal government in our republic and start to work collaboratively on other needed legislation resulting from federal abdication .

Specific, comprehensive legislation should return to Congress its rightful authority and avoid handing over that authority to the administrative agencies to misapply or misinterpret legislation. Such legislation should include provisions for scheduled review or sunsetting; call for bipartisan representation among federal department and agency leaders; and reducing the number of political appointees from the current nearly 4,000, of which nearly 1,200 are subject to Senate confirmation. It is time for Congress to get back to work.

Joshua M. Javits is a mediator and arbitrator. He is a member of the National Academy of Arbitrators and was Chair of the National Mediation Board.