For the first time in a long time, we have a president who respects Congress’s lawmaking primacy. The problem is that Congress doesn’t respect itself.
Somewhat surprisingly given his role in the pen-and-phone Obama administration, Joe Biden has repeatedly signaled the constitutional limits of his office. As president-elect, he told civil rights leaders that progressive calls for unilateral executive action are “way beyond the bounds” of the Constitution. And while signing a spate of orders during his first days in office, the president emphasized “there’s nothing new that we’re doing here”—his point being that he was simply rolling back Trump’s executive initiatives, not usurping congressional authority.
Biden’s evident reluctance to make law is a refreshing break from modern presidential practice. Obama famously resorted to expansive interpretations of executive discretion to bypass lawmakers, while Trump adopted all the trappings of an imperial president, including the declaration of a bogus emergency to fund a border wall beyond what Congress was willing to provide.
The reason for Biden’s restraint is obvious: He spent his adult professional career in Congress. Given that personal history, it’s no wonder he’s sensitive to presidential overreach, which invariably diminishes the legislature.
What is far less obvious is why Congress has rejected the president’s message of congressional empowerment. Indeed, leading lawmakers are more gung-ho on presidential authority than the president!
In late January on The Rachel Maddow Show, for example, Senate Majority Leader Chuck Schumer urged Biden to “call a climate emergency,” because “he could do many, many things under the emergency powers of the president that he can do without legislation.”
On multiple levels, Schumer’s request is bizarre. For starters, his statement defies constitutional logic. He is the Senate Majority Leader. If Schumer wants climate policy, wouldn’t passing legislation make more sense? Instead, he’s emphasizing what the president can do “without legislation.”
More broadly, Schumer is being transparently hypocritical. Back when Trump abused the president’s emergency powers to bypass Congress, Schumer’s floor speech channeled the Founding Fathers in expressing his outrage. Now, he’s a cheerleader for the same constitutional harm. He had it right the first time.
Although the Biden administration hasn’t commented on Schumer’s call for a climate emergency, the president has thrown cold water on similar requests. Last month, Sen. Elizabeth Warren (D-Mass.), among others, called on the administration to unilaterally cancel $50,000 in student debt for millions of Americans. During a CNN townhall, Biden expressly refused, explaining “I don’t think I have the authority to do it.”
More recently, Rep. Pramila Jayapal (D-Wash.), Chair of the Congressional Progressive Caucus, has been pushing for the president to smash norms by overriding the Senate parliamentarian on a key procedural question about whether a $15 minimum wage may be included in the COVID stimulus. Again, the administration demurred, with Press Secretary Jen Psaki telling reporters that “we certainly defer to the parliamentarian.”
None of this is to single out Democrats. Over the last four years, congressional Republicans failed to check President Trump’s excesses. Sadly, in the contemporary Congress, party affiliation trumps institutional pride, such that half the legislature is unbothered with unbound executive authority whenever “their guy” occupies the White House.
This is not how our system of checks and balances is supposed to work. Starting with first principles, the Constitution sets forth our governmental structure in its first three Articles. Article I establishes Congress. Article II creates the presidency. And Article III sets forth the Supreme Court.
Did you notice that Congress is number one? That’s not by accident. The Founding Fathers took it for granted that Congress is first among equals within our tripartite government.
For his part, President Biden seems to appreciate the Founders’ design, and this wisdom likely flows from experience. He served in the Senate at a time when lawmakers understood that the presidency—and not merely its office-holder—is Congress’s rival. Unfortunately, few, if any, lawmakers in the 117th Congress think this way.
Our constitutional order depends on competing branches of government to check one another. Congress’s weakness undermines this system by facilitating the concentration of power, which James Madison described as being the “very definition of tyranny.”
For now, President Biden is demonstrating uncommon restraint. But recent Congresses have abetted an alarming rise of presidential power, and future Congresses will continue to court tyrannical government for as long as members—of both political stripes—look to the president as lawmaker-in-chief.