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Over the past century, the Legislative Branch has ceded many of its constitutionally delegated powers to the Executive Branch and concentrated most of the rest in the hands of congressional leadership. These concerns are not new. They did not arise in only the past few years. Rather, the erosion of Article I has progressed steadily over time, and every president has played a role. This shift that has gone on for more than a century undercuts the Founders’ vision of checks and balances to protect our freedom from power wielded by too few hands.
The Founders specifically outlined the powers of the legislature in the first Article because they believed that the most power should reside with the people. It was only after they explicated all of the responsibilities of the legislature did they invest power in the executive in Article II. The reversal of this balance deprives the American people of the value of policies informed and shaped by the expertise and local interests of all of our elected representatives.
Many in Congress realize the problem, but too few are willing to take steps to address it systematically. For the most part, when Congress does assert itself, it does so only when it is politically convenient, usually when the Executive and Legislative Branches are controlled by opposing parties. But overall, members of Congress often find it politically safer to not have to address and vote on tough issues, and outside interest groups often find it easier to lobby (privately) a few key people in the Executive Branch than 535 unruly elected officials in Congress. This result favors those with connections and resources at the expense of the rest of us.
The Constitution gives the Legislative Branch the power to make laws and decide when America is at war. The Executive Branch is to “take care that the laws be faithfully executed.” This is what every student is taught in civics class in grade school. Unfortunately, the federal government today does not operate that way. In fact, Congress is quite dysfunctional. At times, it seems, the hardest thing that Congress can do is take a vote to exercise even some of the powers that Article I of the Constitution delegates to it.
In reality, Congress does make laws, but representatives and senators often prefer to simply provide a framework through legislation and then let administrative agencies in the Executive Branch fill in the details via rulemakings. This allows members to create distance between themselves and actual regulations that may be unpopular in their districts or states. When it comes to war powers and trade, Congress -- regardless of which party is in control -- has given up much of its authority to the Executive Branch. Taken together, this abandonment of the Legislative Branch’s constitutional role has given the presidency powers far beyond what the Framers of the Constitution intended.
A shift back to the proper role of the Legislative Branch will take time and political will, but Congress can, and must, begin to address these issues. Rank-and-file members will have to step forward and, at times, take positions that are unpopular with their own party’s leadership. For this to happen, “we the people” need to understand why it matters and make clear to those who represent us that we demand action.
A strong legislature may be unappealing to some, especially to powerful interests that have a stake in maintaining the power dynamic as-is. Among those interests is current congressional leadership. Changing course will not be easy. Regardless, the shift away from a constitutionally limited government to an unchecked government in which one branch has consolidated so much power is neither sustainable nor consistent with our collective liberty. The paradigm must shift back, and it must shift soon.
Many have raised concerns about the erosion of Article I over the past few years. But the blurring of the constitutional lines has been a progression over the past century. In short, despite what partisans would have us believe, this problem did not begin under President Donald Trump. Likewise, it did not begin under President Barack Obama. Every modern president, Democrat and Republican alike, has played a role in the erosion of Article I.
Restoring the Balance of Powers: The Constitutional Role of the Legislative Branch presents the case for the restoration of Article I and empowering the Legislative Branch. This issue brief explains that Congress must reclaim its power from the administrative state by either restoring the nondelegation doctrine or creating an approval process for regulations. When it comes to war powers, Congress must narrow the scope of the war powers resolution. Also, with so much economic uncertainty created by unilateral tariffs imposed by the Executive Branch, Congress should reinforce its authority over trade.