Trump should beware the ‘clawback’ Congress

One of the most important trends in congressional history over the past half century has been the effort — often on a bipartisan basis — by House and Senate leaders to “claw back” powers or impose restrictions on the President, restoring the proper balance of powers intended in the Constitution. Such actions may quickly remind the occupant of the bully pulpit that neither the Founding Fathers nor the presiding Speaker intend for the legislative branch to be subservient to the executive.

We are, of course, a presidential-centric nation, and it is easy to understand why so much power shifted to the White House during the 20th century. The rapid growth of the federal bureaucracy, a national depression, World War II, the Cold War — all necessitated decisive, often swift leadership suited to the concentrated power of a single member of the executive branch. “The weakness of the Congress is the strength of the President,” British parliamentarian and historian James Bryce wrote in “The American Commonwealth” in 1888. Elena Kagan (then a Harvard Law professor) agreed that even in 2001, “We live in an era of presidential administration.”{mosads}

But Congress doesn’t see it that way, except when it becomes obsequiously inactive to protect a president of its own party (and both parties are guilty of such coddling). True, Congress cannot speak with one voice or act swiftly; as Thomas Cronin has written, Congress “is never going to be fast on its 1,070 feet.” But both the Congress and the Constitution give the legislative branch the ability to hold the executive in check, and under its new management, the House (and maybe even the Republican Senate) increasingly seem likely to do just that.

Three cases in point:

On Feb. 13, the House passed on a bipartisan vote of 248-177 a resolution cutting off U.S. assistance to the Saudi government’s brutal war in Yemen. Eighteen Republicans, many of the conservative card-carrying members of the Freedom Caucus, joined Democrats in a rare action flexing the 1973 War Powers Resolution, a post-Vietnam measure whose constitutionality has been rejected by every president since Nixon (who didn’t think much of it either). Furious at the Saudis for their leaders’ role in the murder of journalist Jamal Khashoggi, the Republican Senate passed a similar resolution the end of 2018 by a bipartisan vote of 56-41. The House action makes it likely the Senate will again approve the cutoff in aid, putting President Trump in an awkward position of rebuking Congress in order to continue aiding a murderous Saudi regime.{mossecondads}

A bipartisan Congress sent the president a pittance for border security, far less than the demand for which Trump shutdown the government for over a month. (Also less than the Democrats offered him before the shutdown.) Senate Majority Leader Mitch McConnell (R-Ky.) demonstrated he lacks the 60 votes needed for anything approaching Trump’s Folly, so the president had little choice but to sign what Congress sent him — and then try to use the powers granted him under the National Emergencies Act of 1976 to build it on his own by raiding pockets of unspent money.

Not so fast. The National Emergencies Act was not envisioned as a granting of power to the president, but a constraint on his ability to declare emergencies willy nilly without congressional review.

The law requires the president to certify the justification for the emergency repeatedly — and empowers Congress to rescind the declaration.

True, as with the War Power resolution, the president can veto such an act of Congress, but at his peril since he will need Congress to fund his future priorities, and Congresses have been known to become petulant when presidents snub their noses at the East end of Pennsylvania Avenue.

Lastly, Congress is reasserting its clawback power through the expanded use of oversight, as evidenced by the testy confrontation last week between acting Attorney General Mathew Whitaker and the new Judiciary Committee chairman, Rep. Jerry Nadler (D-N.Y.).

Like the War Powers Resolution and the Emergencies Act, institutionalized oversight is a product of md-1970s reforms responding to Vietnam and Watergate, both viewed as egregious power grabs by the executive. Few perfected the art of grilling hapless administration officials more excruciatingly than John Dingell (D-Mich.), the longest-serving member of Congress who died Feb. 7. Many a Cabinet Secretary or agency administrator lived in dread of receiving a “Dingell-gram” ordering an appearance before the hard-driving chairman. The men and women running House committees in 2019 are the progeny of Dingell and other forceful practitioners of the art of interrogation.

If Trump officials think they will be able to defy the requests (or subpoenas) that are headed their way, or insult their way out of answering Hill interrogators, they are about to have a very rude awakening.

War Powers Resolution. National Emergencies Act. Rigorous oversight. Three legacies of an era when Congress declared, like Howard Beale in Broadway’s “Network,” “We’re mad as hell and we aren’t going to take it anymore!” It’s only February, but at the rate it is going, the 116^th could well go down in history as the “Clawback Congress.”