More than a year ago, Americans elected a “unified” government — meaning a Republican president and a Republican Congress — creating the conditions for the revival of constitutional forms.
We had a disruptive president with a broad, populist agenda that requires legislation, and a focused legislature willing to work with an energetic executive to reassert government based on consent.
This unified Republican government would mean a competitive but healthy congressional-executive relationship that would serve to limit the modern state at home and abroad, restoring the institutional norms of small-r republican government.
It was a unique moment of great opportunity – the greatest opportunity since President Ronald Reagan to break the centralization of power in favor of constitutional rule.
So, what has happened?
The foremost concern of many voters was allayed when President Trump kept his campaign promise and nominated a strong defender of the Constitution to fill the vacancy on the Supreme Court. Further judicial appointments are being made in the lower courts as well – though these are being slow-walked by the Senate. Evidence of other Trump policies abound. The U.S. has withdrawn from the Trans-Pacific Partnership and will do so with the Paris Climate Accord. Illegal entry is down due to stronger border enforcement. There has been regulatory pullback within the bloated bureaucracy. And the economy is now growing at 3 percent.
But the major accomplishments of this presidency have been done without the legislative branch. Trump has issued 51 executive orders and 39 presidential memorandums. (And just for the record, he’s sent some 2,400 tweets.) During the same time, he’s only signed 58 pieces of legislation. Take away the Congressional Review Acts (a special procedure that allows for the reversal of regulations), and there have only been 43 laws passed during this administration — less than half the number of significant presidential actions.
The House of Representatives has mostly done its job. As of Dec. 21, it has passed 477 pieces of legislation, including the REINS Act, the Regulatory Responsibility Act, and the Financial Choice Act (which repeals the most egregious parts ofDodd Frank, including the CFPB). It has been active on immigration policy, passing Kate’s Law (which punishes returning criminal aliens) and legislation cutting off funds for sanctuary cities, the Verify First Act, and an important anti-gang immigration bill targeting MS-13. It’s passed legislation to restrict the ability of the EPA to promulgate rules, and the Midnight Rules Act (which would amend the CRA to allow Congress to disapprove regulations en banc). It’s tackledhealthcare, sending legislation repealing and replacing Obamacare to the Senate. It’s modernized the tax code for the first time in three decades, providing cuts for the average taxpayer in every income group and allowing Americans to keep more of their hard-earned money.
The House, which has almost completely lost control of its budget powers and instead come to focus on post-budgetary oversight and after-the-fact “regulatory relief” from the bureaucracy, has for the first time in more than a decade passed all of their appropriation bills, and done so on time.
The greatest deliberative body in the world, on the other hand, has become a legislative dead zone. Of those 477 bills passed out of the House, an incredible 378 are still sitting in the Senate.
Hiding behind unenforced rules (like the filibuster) and abused courtesies (like the blue slip), the Senate is stonewalling almost everything, and in doing so preventing Congress from fulfilling its constitutional duty. Though the confirmation process has finally begun to move more quickly, the number of appointments still vacant because of the Senate’s glacial pace is severely limiting the judicial as well as the executive branches.
With healthcare, the Senate weakened the House proposal by making it use reconciliation to pass its own repeal and replace bill to get around the Senate’s filibuster. Even then, the Senate couldn’t keep its own caucus together, unable to pass the minimalist “skinny bill” by one vote – a vote previously promised to the majority leader but ceremoniously withdrawn on the Senate floor with a thumbs-down.
While Congress ended the year on a high note by successfully passing tax reform, it’s impossible to ignore that the other conservative “wins” of 2017 – cutting regulations, adding Judge Gorsuch to the Supreme Court, opening public lands, and recognizing Jerusalem as the capital of Israel – have come entirely from the executive branch.
Now, this inactivity could be the natural friction between two branches – legitimate institutional fights signaling a healthy, robust government of checks and balances. But it could be the fracturing of the Republican governing coalition, as “unified government” looks anything but unified.
We are engaged in a debate over the kind of regime we are going to live in, and what the government is going to do to and with us. The question is whether government is going to grow to a size, authority, and form that it is out of our control. That is the danger.
The president seems to be engaged in this battle, as are his allies in Congress. But many, if not most, Republicans in Washington are not. That is the problem.
Large elements of the Republican Party in Congress and among the party elites seem to be joining the cause of the administrative state – by intention or default.
To control (let alone diminish) the bureaucracy that now rules us will require a president and a Congress using their institutional powers to their fullest extent, independently but in accord, to go after the modern state. Only this unity of purpose will revive constitutional government.
The opportunity for Republicans to save our republic is still there, but the possibilities are diminishing, and time is quickly passing.
Dr. Matthew Spalding is Associate Vice President and Dean of Educational Programs for Hillsdale College in Washington, D.C., where he is the Allan P. Kirby, Jr. Chair in Constitutional Studies.
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