[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
ARTICLE I: CONSTITUTIONAL PERSPECTIVES ON THE RESPONSIBILITY AND
AUTHORITY OF THE LEGISLATIVE BRANCH
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MEETING
of the
COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, MARCH 3, 2020
__________
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
Printed for the use of the Committee on Rules
______
U.S. GOVERNMENT PUBLISHING OFFICE
40-628 WASHINGTON : 2020
COMMITTEE ON RULES
JAMES P. McGOVERN, Massachusetts, Chairman
ALCEE L. HASTINGS, Florida TOM COLE, Oklahoma
Vice Chair Ranking Republican
NORMA J. TORRES, California ROB WOODALL, Georgia
ED PERLMUTTER, Colorado MICHAEL C. BURGESS, Texas
JAMIE RASKIN, Maryland DEBBIE LESKO, Arizona
MARY GAY SCANLON, Pennsylvania
JOSEPH D. MORELLE, New York
DONNA E. SHALALA, Florida
DORIS O. MATSUI, California
DON SISSON, Staff Director
KELLY DIXON, Minority Staff Director
------
Subcommittee on Legislative and Budget Process
ALCEE L. HASTINGS, Florida, Chairman
JOSEPH D. MORELLE, New York ROB WOODALL, Georgia
Vice Chair Ranking Republican
MARY GAY SCANLON, Pennsylvania MICHAEL C. BURGESS, Texas
DONNA E. SHALALA, Florida
JAMES P. McGOVERN, Massachusetts
------
Subcommittee on Rules and Organization of the House
NORMA J. TORRES, California, Chair
ED PERLMUTTER, Colorado DEBBIE LESKO, Arizona
Vice Chair Ranking Republican
MARY GAY SCANLON, Pennsylvania ROB WOODALL, Georgia
JOSEPH D. MORELLE, New York
JAMES P. McGOVERN, Massachusetts
------
Subcommittee on Expedited Procedures
JAMIE RASKIN, Maryland, Chair
DONNA E. SHALALA, Florida MICHAEL C. BURGESS, Texas
Vice Chair Ranking Republican
NORMA J. TORRES, California DEBBIE LESKO, Arizona
JAMES P. McGOVERN, Massachusetts
C O N T E N T S
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March 3, 2020
Opening Statements:
Page
Hon. James P. McGovern, a Representative in Congress from the
State of Massachusetts and Chair of the Committee on Rules. 1
Hon. Tom Cole, a Representative in Congress from the State of
Oklahoma and Ranking Member of the Committee on Rules...... 3
Witness Testimony:
Laura Belmonte, Dean, Virginia Tech College of Liberal Arts
And Human Sciences, Professor of History, Virginia Tech
University................................................. 5
Prepared Statement....................................... 6
Matthew Spalding, Dean, Van Andel Graduate School of
Government, Kirby Professor in Constitutional Government,
Vice President, Washington Operations, Hillsdale College... 21
Prepared Statement....................................... 23
Deborah Pearlstein, Professor of Law and Co Director,
Floersheimer Center for Constitutional Democracy, Cardozo
Law School................................................. 44
Prepared Statement....................................... 47
Saikrishna Prakash, James Monroe Distinguished Professor of
Law and Paul G. Mahoney Research Professor of Law, Senior
Fellow, Miller Center of Public Affairs, University of
Virginia................................................... 60
Prepared Statement....................................... 63
Questions and Additional Testimony:
Hon. James P. McGovern, a Representative in Congress from the
State of Massachusetts and Chair of the Committee on Rules. 77
Hon. Tom Cole, a Representative in Congress from the State of
Oklahoma and Ranking Member of the Committee on Rules...... 82
Hon. Alcee L. Hastings, a Representative in Congress from the
State of Florida and Vice Chair of the Committee on Rules.. 92
Hon. Michael C. Burgess, a Representative in Congress from
the State of Texas......................................... 93
Hon. Ed Perlmutter, a Representative in Congress from the
State of Colorado.......................................... 98
Hon. Rob Woodall, a Representative in Congress from the State
of Georgia................................................. 101
Hon. Jamie Raskin, a Representative in Congress from the
State of Maryland.......................................... 112
Hon. Debbie Lesko, a Representative in Congress from the
State of Arizona........................................... 118
Hon. Mary Gay Scanlon, a Representative in Congress from the
State of Pennsylvania...................................... 122
Hon. Joseph D. Morelle, a Representative in Congress from the
State of New York.......................................... 124
Hon. Donna E. Shalala, a Representative in Congress from the
State of Florida........................................... 129
Additional Material Submitted for the Record:
Republican Study Committee Government, Efficiency,
Accountability and Reform Task Force Report Policy
Recommendations List....................................... 119
Republican Study Committee Government, Efficiency,
Accountability and Reform Task Force Report Executive
Summary.................................................... 120
Curriculum Vitae and Truth in Testimony Forms for Witnesses
Testifying Before the Committee............................ 135
ARTICLE I: CONSTITUTIONAL PERSPECTIVES ON THE RESPONSIBILITY AND
AUTHORITY OF THE LEGISLATIVE BRANCH
----------
TUESDAY, MARCH 3, 2020
House of Representatives,
Committee on Rules,
Washington, D.C.
The committee met, pursuant to call, at 10:02 a.m., in Room
H-313, The Capitol, Hon. James P. McGovern [chairman of the
committee] presiding.
Present: Representatives McGovern, Hastings, Perlmutter,
Raskin, Scanlon, Morelle, Shalala, DeSaulnier, Cole, Woodall,
Burgess, and Lesko.
The Chairman. The Rules Committee will come to order. I
want to welcome our witnesses invited jointly by myself and Mr.
Cole, and I want to thank them for being here.
I will begin with an opening statement from me and Mr.
Cole, and then we will go to our distinguished witnesses.
Today the Rules Committee will hold a hearing to discuss
how the Constitution separated powers between the legislative
and executive branches and how the balance of power between
these branches has shifted over time. We are doing this in the
hopes of finding concrete, bipartisan solutions to better
ensure Congress is playing the role our Nation's founders
envisioned.
That is a lot, I know. And while a constitutional debate
may be fun for law students and legal scholars, and Mr.
Raskin----
Mr. Hastings. It wasn't fun when I was----
The Chairman [continuing]. For the rest of us, it could
feel a little in the weeds. So for the rest of us, let me
simplify.
You know, we throw around the phrase, ``The People's
House,'' a lot around here. But this really is about whether we
remain the institution that our Nation's founders created to be
the voice of the people.
The Constitution entrusts Congress with deciding how to
spend Federal resources and to develop policy for the entire
Nation on everything from healthcare and energy policy to trade
and our Nation's farm policy. It also entrusts Congress with
the very important job of determining when to commit the Nation
to war and to put our servicemembers in harm's way.
These important tasks were put in Congress' hands because
we are the closest to the people. Each Senator represents an
entire State, but each of us in the House represents roughly
700,000 constituents. We are on the ballot every 2 years. This
puts us closer to the people, their worries, their needs, their
frustrations, their hopes, and their fears, and makes us more
responsive to them. Because our founders determined that some
important tasks demand direct input from the people.
The President, the head of the executive branch, has
important powers too. Among them is implementing and enforcing
the laws that Congress enacts. They face regular elections as
well, since there are no kings or queens in America. But
sometimes Presidents of both parties have overstepped, and gone
from enforcing policy to creating it in ways that our founders
never imagined. And every time that happens, the power of
Congress, the people's power, is diminished.
That is what we have seen for the past 20 or 30 years now.
President after President has taken more and more of the power
traditionally vested in the Congress. So the question is
whether we are going to implement reforms and take our power
back. Across our history, we have seen Congresses do just that,
like in the 1970s when the War Powers Resolution, the National
Emergencies Act, and the Arms Export Control Act, among other
reforms, were enacted to reign in Presidential power.
And in the 1990s when Congress passed the Congressional
Review Act to provide better oversight over regulations. I
think the time has come for Congress to push back once more,
not to reign in a particular President, but to reign in all
Presidents. And that is with an S at the end.
Some people may wonder why we are doing this now. Well, I
think this is the perfect time to do it. We are in an election
year. We don't know who the next President will be. But what we
do know, if history is any indicator, is that the next
President is not going to have an epiphany and just hand
Congress its power back. We need to seize it.
If the next President is a Republican, I know I will want
to assert my full constitutional authority. And I guarantee
that if he or she is a Democrat, my Republican friends will
too.
So this is bigger than who will win the next election
because when the executive doesn't consult with Congress,
doesn't notify Congress, doesn't submit to oversight by
Congress, sends our troops into harm's way without Congress
being part of that discussion, it is not just this institution
that is on the losing side of the tug-of-war with the
executive; it is our constituents, the people we represent.
Those people are the ones who lose.
So before we introduce the witnesses, I would like to
discuss our format today. Our panel does not consist of
majority or minority witnesses. The witnesses have been called
by our ranking member and me jointly, and we relied on the
Congressional Research Service to help us with background
materials because we wanted just the facts.
Next, while we will ask our experts to keep their opening
to 5 minutes, our Members are free to ask questions for as long
as they would like. Now brevity is always rewarded, but we want
to make sure that our members and our witnesses have ample time
to discuss the issues. For the sake of this hearing, I would
like to think that there are no Democrats or Republicans.
Finally, the only reason why we have been able to maintain
a bipartisan approach--and I want to note this for the record--
is because of our ranking member, Mr. Cole, and his very
talented staff. You continue to be a collaborative and helpful
partner, and I so appreciate you and your commitment to this
House, as well as, my staff and the Members on both sides here.
Our hope is that this process will help us find
opportunities to reassert congressional authority that both
sides can agree on. Having said that, I am happy now to yield
to our Ranking Member, Mr. Cole, for any remarks that he wishes
to make.
Mr. Cole. Thank you very much, Mr. Chairman. I have a
couple of off-the-cuff remarks before I get to my prepared
remarks. You know, normally when I come into this committee, I
always walk in thinking it is 9 to 4. Today I think it is 13 to
zero, because frankly whether you are a liberal Democrat or a
conservative Republican, whichever side of the philosophical or
partisan divide you are on, I think there is probably a
commonsense, throughout Congress honestly, not just on this
committee, that there has been a many decades' long erosion of
congressional authority and that it is time to do something
about it.
We are also 13 and 0 today because we are all students and
you are the instructors. As a matter of fact, some of us did
our homework this weekend. I noticed Mr. Perlmutter cramming
right to the last minute when he was reading the testimony, and
all of us probably are in a little bit of awe of you, except
again Mr. Raskin, as the chairman pointed out, since he is
academically on a par with all of you. But we are very grateful
for your participation.
And, Mr. Chairman, let me add again, I am very grateful for
your leadership. Once again, you have established the Rules
Committee as the model for civility in Congress, a new and
unaccustomed role for us but one that we proudly claim under
your leadership.
Today's original jurisdiction hearing covers what in my
view is one of the most important issues facing Congress, the
scope of Congress' power under Article I of the Constitution
and the impact of separation of powers on governance.
I want to thank Chairman McGovern for arranging today's
hearing. Though the chairman and I disagree on a lot of things,
the constitutional authority entrusted to Congress is not one
of them. Indeed, we are both equally concerned about protecting
Congress' power under Article I of the Constitution, and we are
both equally concerned about the erosion of that authority over
the past several decades.
Though the shift has been gradual, Congress has not only
ceded its authority at times, but Presidents of both parties
have also claimed powers that belonged to the legislative
branch.
The Constitution very clearly vests all legislative power
in the Congress of the United States and all executive power in
the President of the United States. This was carefully crafted
to create a system of checks and balances that prevents any one
branch from becoming too powerful and allows our republic to
thrive.
So why then does Congress over the years consistently allow
the reduction of its own authority? I am hopeful that our
witnesses today will shed some light on this and discuss where
practices of the past went wrong. And I think probably all of
us as practicing politicians and legislators have some pretty
interesting thoughts on, again, where we see we have fallen
short in many cases, of living up to our own responsibilities.
With today's hearing, we will hear from four experts who
allow us to put all of this into perspective. We will hear
about the constitutional provisions affecting both the
legislative and executive powers, and we will hear testimony on
the history of how this has all unfolded, and we will hopefully
hear recommendations on what Congress can do to reclaim its
authority.
At the end of this process, we may learn that there really
is nothing specific Congress needs to do to reclaim and
reauthort its constitutional authority, other than act
decisively to do so, and utilize the tools currently available
to us. Or we may discover that substantive changes do need to
be made. Either way, I am hopeful that Congress can act in a
bipartisan manner to effectively use the legislative power,
should it choose to do so. Today's hearing at the Rules
Committee is an important first step in making that goal a
reality.
Finally, I want to invite us all to remember and ponder
this. When our founders envisioned the grand American
experiment and put pen to paper on the distribution and
separation of government powers in the U.S. Constitution, they
first described the powers entrusted to Congress on behalf of
the American people. Indeed, perhaps, the greatest power of the
legislative branch, established in Article I, is how closely
connected it remains to the views of the Nation citizens as my
good friend, the chairman, pointed out.
With that, Mr. Chairman, I want to thank you again for
calling today's hearing.
I want to thank our witnesses for being here today and for
sharing their insights and expertise with us.
I want to thank the staff on both sides of the dais for
their hard work in putting this hearing together.
Thank you, Mr. Chairman, and I yield back.
The Chairman. Well, thank you very much. And I am now
delighted to introduce our panel of witnesses.
Matt Spalding is the Kirby professor in constitutional
government and dean of the Van Andel Graduate School of
Government, as well as the vice president of Washington
operations at Hillsdale College. He is the best selling author
of ``We Still Hold These Truths: Rediscovering Our Principles,
Reclaiming Our Future,'' and is also executive editor of the
``Heritage Guide to the Constitution.''
Deborah Pearlstein is a professor of law and co-director of
the Floersheimer Center for Constitutional Democracy at Cardozo
Law School. Prior to this, she served as an associate research
scholar in the law and public affairs program at Princeton
University.
Laura Belmonte is a professor of history and dean of the
Virginia Tech College of Liberal Arts and Human Sciences. She
is co-author of ``Global Americans: A Transnational U.S.
History,'' author of ``Selling the American Way: U.S.
Propaganda in the Cold War.'' She served on the U.S. Department
of State's Advisory Committee on Historical Diplomatic
Documentation from 2009 to 2019.
And Sai Prakash is a James Monroe distinguished professor
of law and Paul G. Mahoney research professor of law and senior
fellow at the Miller Center of Public Affairs at the University
of Virginia. He has also taught at Princeton and the University
of San Diego School of Law. He clerked for Justice Antonin
Scalia.
Thank you again all for joining us, and I am going to begin
with Ms. Belmonte. You are recognized for your testimony.
STATEMENT OF LAURA BELMONTE, DEAN, VIRGINIA TECH COLLEGE OF
LIBERAL ARTS AND HUMAN SCIENCES, PROFESSOR OF HISTORY, VIRGINIA
TECH UNIVERSITY
Ms. Belmonte. Good morning, Chairman McGovern, Ranking
Member Cole, and members of the Rules Committee. Thank you for
the opportunity to participate in this hearing on how Congress
might reassert its constitutional authority and redress the
current imbalance between the executive and legislative
branches.
I appear before you as a scholar who has studied the
history of the United States for over 30 years, particularly
the history of U.S. foreign relations. I have spent my career
explaining how and why the role of the U.S. Government has
shifted over time. In my academic work and public facing
scholarly activities, I have tried to present dispassionate
explanations of the machinery of government, the actors who
effect public policy change, and the reasons why certain events
and individuals arise.
My key aims today are to place the current state of affairs
into historic context and to stress that the present imbalance
between the executive and legislative branches is a result of a
decades' long shift, not a recent turn of events.
The United States has one of the most brilliantly conceived
and enduring frameworks of government in the history of the
world. The Constitution's articulation of separate powers for
the three branches of government is the very essence of that
system, a reflection of the Framers' fears of concentrated
power.
In preparing this testimony, I have reflected upon the
final day of the Constitutional Convention in 1787. Eager for
news about what type of government the Framers had created, a
crowd waited on the steps of Independence Hall. When Benjamin
Franklin appeared, Elizabeth Willing Powell, the hostess of one
of Philadelphia's best-known political salons, and wife of the
city's mayor, asked Franklin, ``What do we have, a republic or
a monarchy?'' He famously replied, ``a republic, if you can
keep it.''
We, as a Nation, are at a critical juncture where
substantive action is needed if we are to keep the Democratic
Republic the Framers envisioned. The fact that you are
convening this hearing is proof that you also recognize that.
I am honored to be part of the discussion.
[The statement of Ms. Belmonte follows:]
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The Chairman. Dr. Spalding.
STATEMENT OF MATTHEW SPALDING, DEAN, VAN ANDEL GRADUATE SCHOOL
OF GOVERNMENT, KIRBY PROFESSOR IN CONSTITUTIONAL GOVERNMENT,
VICE PRESIDENT, WASHINGTON OPERATIONS, HILLSDALE COLLEGE
Mr. Spalding. Chairman McGovern, Ranking Member Cole,
members of the committee, thank you for inviting me to testify
to the Committee on Rules.
Like many of you, I am concerned about the decline of
congressional power relative to the modern executive, and I
hasten to also add that this is not a recent development.
During this administration, the previous administration, or
many before that.
The sustained expansion of the executive and the prolonged
narrowing of the legislative branch, in my opinion, are
symptoms largely of a decades' long change in American
government towards administrative rule. The result is a
structurally unbalanced relationship between an increasingly
powerful executive and a weakening legislative branch seemingly
unwilling to exercise its institutional muscles.
My testimony makes three general points. First, the old
ways that a constitutional government have been replaced for
the most part by a new form of bureaucratic rule. By ``the old
ways,'' I mean the rule of law based on consent, government of
delegated, enumerated powers, three separate branches, each
with distinct powers, duties, and responsibilities, separation
of powers to prevent the concentration of power, encourage
cooperation for the common good.
The basic power of government is in the legislature because
the essence of governing is centered on the legitimate
authority to make laws. Congress' most important power is
control of the government's purse as a check on the executive
and the authority by which the legislature shapes national
affairs.
The President is vested with unique constitutional powers
that do not stem from congressional authority. This is
especially the case when it comes to war and national security.
The executive power is not unlimited, however, as the grant of
power is mitigated by the fact that many traditionally
executive powers were given to Congress. This system was
further divided between the national and State governments in a
system of Federalism, leaving ample room for self-government.
The practical result was the United States was centrally
governed under the Constitution but administratively
decentralized at the State and local level. This began to
change after the Civil War when progressives advocated more
administration in a new form of governing, they called the
administrative state, to remove or circumvent structural
barriers and make government more unified and streamlined.
Presidents of both political parties, Theodore Roosevelt
and Woodrow Wilson in particular, advocated expanding the
administrative role of government, which meant expanding the
executive branch.
The most significant shift in this balance of power has
occurred more recently, in my opinion, under the great society
and its progeny in both parties. Agree with the policies or
not, this expansion of regulatory activities on a society-wide
scale led to a vast new centralizing authority in the Federal
Government and a vast expansion of regulatory authority in
particular.
Both Congress and the Presidency have adapted to these new
ways, but in the legislative executive battle to control the
bureaucratic state, the executive has a distinct advantage.
Congress was the first to adapt itself to this process but
increasingly turned to back-end checks, such as the legislative
veto that the Supreme Court declared unconstitutional, and has
come largely to focus on post budgetary oversight and after-
the-fact regulatory relief.
The rise of what I like to call the ``neo-imperial
Presidency'' should not be that surprising, given the
overwhelming amount of authority that has been delegated to
decision-making actors and bodies largely under executive
control.
As Congress expanded the bureaucracy, creating agencies,
delegating lawmaking authority, losing control of the details
of budgeting, focusing on post hoc checks, the executive has
grown. Add to this the general breadth of legislative branch at
executive discretion, as well as sometimes poorly written and
conflicting laws, the modern executive can, more than ever,
lead the bureaucracy to the President's policy ends with or
without the cooperation of Congress.
And in this competition to assert legislative or executive
branch control over the fourth branch of government, the
executive has a distinct advantage because administration, as
Hamilton reminds us in the Federalist Papers, is inherently
executive in nature.
My last point, the proper remedy to this imbalance is for
Congress to reassert its core legislative powers. First,
Congress must reassert its legislative muscles, not to paralyze
the government but to command it. The courts are not going to
solve the larger problem. And I think Congress is on stronger
ground when it asserts its core legislative powers where the
executive plays a secondary role. So, for instance, using the
budget to control executive war powers.
Second, Congress, as much as possible, should cease
delegating the lawmaking power and should not flinch from using
its legislative powers to reclaim it. Congress should insert
itself more in the regulatory process, perhaps through a
regulatory budget or vehicles like the REINS Act in order to
restrain the executive's ability to make laws without
legislation.
Third, regular legislative order, especially the day-to-day
back-and-forth of budgeting and overseeing the operations
government will do more than anything to restore Article I. If
Congress objects to the extent of executive discretion, for
instance, Congress needs to narrow that discretion through
statutes that are clear, precise, and unambiguous.
And fourth and last, Congress is at its strongest, I
believe, when it exercises the power of the purse.
Strategically controlling and using the budget process will
turn the advantage back to Congress, forcing the executive to
engage with the legislative branch and get back into the habit
of executing the laws enacted by Congress.
Thank you.
[The statement of Mr. Spalding follows:]
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The Chairman. Thank you.
Professor Pearlstein.
STATEMENT OF DEBORAH PEARLSTEIN, PROFESSOR OF LAW AND CO-
DIRECTOR, FLOERSHEIMER CENTER FOR CONSTITUTIONAL DEMOCRACY,
CARDOZO LAW SCHOOL
Ms. Pearlstein. Thank you.
The Chairman. Just make sure your mike is on.
Ms. Pearlstein. Oh, thank you.
Thank you. Chairman McGovern and Ranking Member Cole,
members of the committee, thank you for your leadership in
convening this bipartisan hearing and for the opportunity to
take part as you consider ways Congress might reassert its
authority under Article I.
While my written testimony offers some explanations for and
some recommendations for correcting our current skewed balance
of powers among the Federal branches, in these brief remarks, I
would like to just share several of the broader understandings
that inform the testimony I have provided.
First, while members of this committee well know that the
Constitution's basic architecture allocates particular limited
powers to Congress in Article I, and to the President in
Article II, and to the courts in Article III, teaching
Constitutional law to first-year law students has reminded me
repeatedly that the lessons of high school civics don't always
stick as well as we might hope they do.
Among other things, without fail, each semester, at least
some students express surprise when I put up on PowerPoint
slides right next to each other, a list of Congress' powers on
the one hand and a list of the executive's powers as printed in
the Constitution on the other, that Congress' list is so very
much longer than the list of powers granted to the executive.
This is, of course, true not only in matters of fiscal and
economic responsibility but also national security and foreign
affairs.
But while, for example, the President has the power to
negotiate treaties and receive ambassadors, and as our armed
forces' Commander in Chief, the Constitution gives to Congress
a far lengthier list, not only to declare war but also to
regulate commerce with foreign nations, define and punish
offenses against the law of Nations, make rules for the
government in regulation of the armed forces, appropriate funds
to provide for the common defense, indeed, defense spending
every 2 years in public the Constitution requires, and, indeed,
should the Framers have left anything out in any of those
powers, Congress is given the catch-all authority to make all
laws which shall be necessary and proper for carrying into
execution any of those.
But it is not hard to see where the students' surprise came
from. Popular accounts have long described an imperial
Presidency that regularly deploys military force with no regard
for congressional preferences. Executive branch lawyers and
others regularly invoke memorable, if not judicially
meaningful, rhetoric about the President's signal role in
Foreign Affairs. Even Members of Congress and the courts talk
frequently about the President's unique expertise in this
realm, and this rhetoric and this popular story matter.
So by now, we shouldn't be surprised to find, as one recent
poll did, that only a third of American college students can
correctly identify Congress as the branch of government with
the power to declare war.
In short, we have some work to do in the first instance, to
remind others in Congress and the American people, that the
Constitution assumed Congress would have access to its own
expertise, and Congress, not the executive, would be the
primary agent of change in setting U.S. national policy,
foreign and domestic.
Second, the scope of congressional delegations of authority
to the executive is undoubtedly among the reasons why Congress
feels frustrated in its ability to constrain executive power
today. Yet, while some are understandably focused on the role
of administrative agencies writ large, among the most
significant delegations of power to the executive are found in
statutes that give authority to the President alone triggered
by factual or policy determinations made solely by the
President himself.
These delegations aren't to the administrative state. They
are to the President. A few such statutes relate to war powers
directly, most famously the 2001 AUMF, but the vast majority of
statutes of this type address other Federal policies, from
trade sanctions and domestic emergencies to economic regulation
and even immigration. These delegations are particularly
worrisome, in my view, but they are also particularly likely,
or should be particularly likely, to generate bipartisan
interest in correcting.
Particularly worrisome, because unlike broad delegations of
power to administrative agencies, the President is not bound in
exercising these powers by the Administrative Procedures Act,
the statute that requires agency decisionmaking to involve
input from experts and other members of the public, and
subjects them to judicial review to ensure they are reasoned
and supported by facts.
Presidents may decide to consult their expert advisers.
They may decide to follow an internal process, but the APA
itself doesn't require them to do so. It is for this reason
that both parties should be interested in making reforms at
this level. While it may be essential in some circumstances to
afford the Presidents flexibility to respond to particular
national emergencies, it is difficult to understand why any
such response is not informed, or not required to be informed,
by our Nation's best possible expertise.
Finally, I want to caution against any temptation to treat
delegation as such, or administrative agencies as such, as a
bad or uniform thing. As recent events make clear, we need an
effective CDC. We need an effective NIH. We need effective
Departments of State and Defense and others. And delegation of
powers to these and other agencies are an indispensable tool of
good governance.
But delegation is not an on-off switch. What makes it good
or bad, more or less effective, depends in significant part on
how well Congress chooses from its broad suite of tools to
channel and monitor administrative discretion--from providing
concrete statutory guidance about what and when Congress
believes action is needed, to imposing restrictions on the
exercise of that action, like requiring the President to
consult with Congress or with relevant experts, document
findings, or imposing automatic termination or sunset
restrictions that prevent delegations from lasting in
perpetuity.
With meaningful, tailored reforms, Congress can succeed
both in reclaiming its power and improving the effective
functioning of government for all Americans.
Again, I am grateful for the committee's efforts and for
the opportunity to share my views.
[The statement of Ms. Pearlstein follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you.
Professor Prakash.
STATEMENT OF SAIKRISHNA PRAKASH, JAMES MONROE DISTINGUISHED
PROFESSOR OF LAW AND PAUL G. MAHONEY RESEARCH PROFESSOR OF LAW,
SENIOR FELLOW, MILLER CENTER OF PUBLIC AFFAIRS, UNIVERSITY OF
VIRGINIA
Mr. Prakash. Dear Chairman McGovern, Ranking Member Cole,
and other distinguished members of the committee, it is an
honor and a pleasure to be here today.
In my view, the first branch risks becoming the second
branch. What was formerly a branch with great power and great
responsibilities has gradually ceded its authority to the
executive or sat idly by while the executive seized authority.
Where we are today: I think we find ourselves at a point in
time where the executive branch continually adds to its own
authority. If a previous President or Presidents have taken
some acts, those acts form the building blocks of subsequent
acts of future Presidents, and this is a bipartisan problem.
And so transgressive acts become the material, if you will, of
a new constitutional conception. And this happens over and over
again, in both statutory and constitutional contexts.
My colleagues here have mentioned the war powers of
Congress being usurped by the Presidency, and that is certainly
an instance where the Presidency over time has claimed
authority to wage war, basically in the constitution's terms,
to declare war. In the process, they have decided that you have
lost your monopoly on the power to declare war.
I think similarly, Presidents have acquired various
lawmaking authorities from you. Sometimes it is delegated by
you. Sometimes it is seized from you by the President. And
these are revolutionary changes in our constitutional
structure, because now the Presidency, the executive branch,
understands that it too is a lawmaker in various ways, either
through lawmaking authority you delegated or through rather
creative forms of interpretation.
How did we get here: I think four factors help explain how
we got here. Presidents today conceive themselves as policy
reformers. They don't view themselves as principally executive
officers. And, in fact, when Presidents talk about their law
execution role, people are a bit confused by it. Many people
think the Attorney General is the chief law enforcement
officer. I think by the Constitution, the President is.
This mind-set makes it more likely that presidents will
usurp power because they run on a policy platform and feel as
if they must implement it.
As you are well aware, Presidents are also party
chieftains, and they expect and receive support for their
initiatives from their co-partisans almost without regard to
whether the initiatives are legal or constitutional. And this,
of course, gives them tremendous weight in the public mind and,
of course, within the halls of Congress.
Presidents have a mighty bureaucracy at their backs,
supplied by you--the lawyers in the White House Counsel's
Office and in the Office of Legal Counsel, and all the
executive officers are supplied and funded by you.
And then the final factor, I think, is a more general
factor, and relates to the idea of a living Constitution. If
Congress can acquire new authorities by a practice, if the
courts can reform our conceptions of constitutional rights, it
is little wonder that Presidents believe that they too can
reform the office of the Presidency.
And I would submit to you that the Presidents are most able
to change our Constitution because they are most able to act
with speed and decision and repetitively in a way that creates
new facts on the ground.
I did not put my timer on, unfortunately.
The Chairman. No, you are fine. You are fine. You are fine.
Mr. Prakash. ``So whither we are tending'' to quote Abraham
Lincoln, I think the continued concentration in the hands of
the executive is what we can see in the future if reforms
aren't made.
If the war powers and the legislative powers of Congress
can be seized by a President, what can't be seized by our chief
executives? You risk becoming a college debating society or a
potted plant, in the words of Brendan Sullivan, a famous
lawyer.
I have a chapter of a book that is going to come out very
soon that I want to share with the Members. This copy is for
the chairman, but I would like all of you to take a look at it.
The last chapter, chapter 9, describes 13 reforms that Congress
can enact, either with the President's consent or over his
veto.
For instance, I think Congress ought to bulk up its staff.
I think it is very hard to fight a behemoth when you are David.
You need more staff, and they need to be paid more. I know that
the staff would like to hear that. But I also think that there
shouldn't be a situation where the minority staff turns over,
you know, when the majority becomes the minority that the staff
are immediately fired. It doesn't make sense to me that you are
running yourself on the cheap in a fight with an executive
behemoth.
I would perhaps disagree with Professor Pearlstein. I think
that delegating legislative power to the executive branch,
either the President or otherwise, feeds the sense that the
President is a lawmaker. And I don't think you can make vast
and important rules without that lawmaking mind-set seeping
into the executive branch.
And so I think you should certainly curb back all the
delegations that go to the executive branch and the
administrative agencies. It is your job, not theirs, to come up
with rules. If you are going to delegate, make those
delegations sunset, and if these agencies are going to create
rules, make those rules sunset, and make them or you reenact
them.
I think, I would try to get Members of Congress to think
more about executive privilege. I think in the modern era, it
is basically a means of stymieing your investigations. I don't
doubt that Presidents need confidential conversations, but when
we see those conversations spill out daily in the Washington
Post, The New York Times, in books, it is sort of odd to think
that whatever doesn't make those pages has to be kept from you
as you go about investigating the Presidency and the executive
branch and thinking about whom to impeach.
Two other final reforms. I think that you can incentivize
bounty hunters to police the executive branch's compliance with
the law. As you know, there are qui tam and informer actions
that go back to the first Congress. They basically authorized
individuals to inform on executive officers who were absconding
with federal funds, and I think that sort of system can be used
to police the appropriations power that you folks should enjoy,
and, for that matter, also police the war powers.
And that brings me to my last suggestion. The War Powers
Resolution should be strengthened. I think the way to
strengthen it is just to have an automatic cut in
appropriations if the President chooses to take us to war. And
maybe, you know, an automatic cut to weapons programs in
particular because the military is not going to want to see its
weapons budget cut in order to wage war against some nation
overseas.
I agree with Chairman McGovern. The best time is now. No
one knows who the next President is going to be. No one knows
who is going to control the House or the Senate. And it is
precisely in this climate of uncertainty that people can put
partisanship aside and act in the best interest of the Nation.
Thank you so much.
[The statement of Mr. Prakash follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much. I want to thank you all.
We have a distinguished panel here. Thank you all for your
excellent testimony.
Before I go to my questions, I just want to acknowledge in
the audience a former colleague, Congressman John Hostettler
from Indiana, who is here. Great to see you back, and thanks
for coming.
You know, the Constitution puts the power to declare war in
the hands of Congress and the power to wage war in the hands of
the executive. And in some ways, this seems pretty simple,
particularly when you think about how things were at the
founding. Congress controlled the funds. There was no standing
Army. The President barely had staff. And the President had to
come to Congress for funds to do just about everything. I am
sure I have oversimplified all of that, but bear with me.
As the Nation grew, things got more complicated. Today, we
have a large standing Army. The President has, let's just say,
a lot of staff. Congress still controls the funds, but
Presidents seem more and more willing to move money around to
suit them. Starting in the 1950s, and then coming to a head in
the 1970s, we saw Presidents of both parties engage in military
actions, sometimes without Congress' knowledge, let alone
consultation or approval.
To stop unauthorized, protracted wars like Vietnam,
Congress passed, over a Presidential veto, the War Powers Act
in the mid-1970s. Key to that Congress' reform effort was
inclusion of a legislative veto where, through a concurrent
resolution by both Houses, Congress would be able to stop a
President's unauthorized military action.
With the War Powers Act, Congress did not delegate any new
authorities to the executive. Instead, Congress was merely
setting up a mechanism to ensure consultation, notification,
and communication with the executive on questions of war and
peace, a communication that could be enforced with a
legislative veto of a President's action.
Then INS versus Chadha rolls around, an immigration case in
1983 that invalidated legislative vetoes across the board. One
of the consequences of the Chadha decision is that we went from
needing a majority of Congress to make a war and to also make
peace, to needing a majority to make war, but a likely a
supermajority to make peace. This is an absurd outcome and has
been an absurd reality here in the Congress.
So my first question is this: In the wake of the Chadha
decision, is it time to update, reform, merely do some
housekeeping around the War Powers Act to ensure that the aims
of the act--again, consultation, notification, and
communication--are achieved? I open this to anybody. Professor
Pearlstein.
Ms. Pearlstein. Sure. The short answer is yes.
Ms. Pearlstein. I think there are--in fact, there have been
a number of efforts. There was a wonderful bipartisan
commission that included Senator McCain some years back. There
have been a number of efforts to propose changes to the War
Powers Act. I think many of these recommended changes that are
out there are very good. I think there are a couple in
particular that warrant consideration.
One, you mentioned secret wars. And the way the current War
Powers Act is framed, it attaches the notification requirement,
the reporting requirement to the trigger that starts the 60-day
clock after which, right, the President is supposed to seek
congressional authorization. You can readily detach that
reporting requirement from the notification trigger.
I support funding cutoff, automatic funding cutoff
mechanisms. The traditional story is indeed with multiple
conflicts, including Venezuela which I testified about last
year. Before force is used, Congress' view, in a bipartisan
way, is, we don't want to constrain the President's
flexibility. And after force is used, bipartisan Members of
Congress say, well, we don't want to interfere or compromise or
undermine troops on the ground. Those are the before and after
arguments invariably in every use of force, which is why a war
powers, a framework statute, and a funding cutoff mechanism, I
think, is necessary.
I guess I will here just mention one other thing which I
think is really important, and that is the definition of
hostilities. The current War Powers Act sets up as a trigger
the requirement that either the funding must be--in my amended
version, the funding would be cut off, or in the current
version, the President would seek congressional authorization
any time forces are introduced into hostilities or a
substantial risk of hostilities.
Over the years, Presidents have interpreted--Democratic and
Republican Presidents have interpreted that word
``hostilities''' more and more narrowly such that even vast
uses of force, sustained air campaigns in foreign countries and
so forth, Presidents have argued, don't count as hostilities
triggering the requirements of the act.
We need a much meatier or more specific definition of what
kinds of hostilities we are talking about, one that is not
specific to domain, meaning Army, Air Force, Navy, Marines,
cyber, right, but that encompasses the range of ways in which
the U.S. Government is now capable of waging hostilities.
The Chairman. Professor Prakash.
Mr. Prakash. I agree with much of what Professor Pearlstein
said. I guess I would be wary of trying to amend the act
because the act, as originally understood, did not authorize
the President to use force for 60 or 90 days. But in practice,
the executive branch believes that the act either authorizes
the use of force for 60 or 90 days or is written in such a way
as to assume that the President has constitutional authority to
use force for 60 or 90 days.
And so if you just tinker with it, those preexisting
understandings will continue on. I think you are better off
starting from scratch, importing whatever you think is useful
from the act.
I think the fundamental question is, do you want to
essentially authorize the President to engage in war or use of
military force for some small period of time and then have that
authority automatically expire, or do you want him to always
come to you first? And I think once you decide that, then you
can construct a new War Powers framework that is consistent
with the Constitution and consistent with your desires.
The Chairman. No, and I personally, wherever it is
possible, would like the President to come to us first to get
authorization. I guess if we had former Presidents here, they
would say, well, you know, there are national emergencies, here
might be something we have to act immediately, and Congress may
be in recess, or we can't get you all here. I think that is
some of the pushback you get.
Dr. Spalding.
Mr. Spalding. Yeah. That really goes to the heart of the
problem. To put it in very broad terms, the more you want to
legislate it, the more problematic it gets and the stronger
grounds the President is on to not abide by it. I mean, it is
no coincidence every President, both parties, has considered
the War Powers Resolution to be unconstitutional as a
restriction.
Now, that doesn't mean there is not a ground somewhere to
find a way for Congress to influence that discussion, but it
goes to the inherent problem of, look, how do you have a
republican form of government--the founders debated this
specific discussion--in which the legislature is the dominant
power, especially when it comes to the general operation of
government, but you created in a republican, small R, form an
executive who is capable of energy, action, immediate things
that Hamilton talked in Federalist 70.
That balance is extremely hard to establish. And the
things,--the more things Congress does that puts timelines and
hampers the executive, they are naturally going to pull back
from that. And I think that courts increasingly, in general,
will side with the executive, because of the sheer necessity of
having that ability to occur with and keep government safe.
That is one of the reasons why, in thinking this through,
in many ways, for a lot of the same reasons, I am inclined to,
as was generally the case, I think Congress is on stronger
grounds when it is shifting to its primary powers, such as the
purse, as I have emphasized in my testimony, as a way to
control that.
If you wish to control the President's activities in this
expanded notion of what they can do in international affairs,
then don't fund them. You have the power not to fund, which
means if you don't do it, they can't actually do it. It doesn't
require a super majority to overcome something. You can pull
that power back.
I think those powers that Congress has are very strong, and
you should go to your strength first. When you start going out
and trying to put timelines on the executive's powers, I think
Congress should exert that, they should push, they should
disagree, but I think you are just naturally on weaker ground.
The Chairman. Dean Belmonte.
Ms. Belmonte. I think that one of the things you need to be
very careful about is what constitutes an emergency even prior
to the era when the War Powers Act existed. You have two pretty
salient examples. In June 1950, when North Korea invaded South
Korea, Harry Truman took advantage of the fact that the Soviet
Union was temporarily boycotting the U.N. Security Council for
its refusal to seat communist China, and therefore, was not
there to veto a resolution to put a multinational force in
Korea. This became the first, but certainly not the last,
unilateral Presidential action that committed the United States
to a long-term conflict in which over 33,000 Americans
eventually died.
Then the second example, of course, occurred in August 1964
in the Gulf of Tonkin when the Johnson administration used two
episodes, the second of which was determined not even to have
occurred, but that was long after Congress quickly and without
hearings of any kind, spirited the resolution to passage. Only
two Senators, Ernest Gruening and Wayne Morse, voted opposed to
that resolution, which basically granted the President
unlimited authority to wage war in much of southeast Asia.
So the context matters, and taking the time to determine
the veracity of the justification is critically important.
The Chairman. Professor Pearlstein, you wanted to----
Ms. Pearlstein. I mean, if I may, I wanted to just maybe
clarify or emphasize a couple of points. First, I quite agree,
and the Framers quite agreed as well, that the President has,
within his own Article II powers, the power to--the language is
from the convention--repel sudden attacks. Right? So there has
never been an argument that the President lacks the power to,
for example, defend the United States, or Americans from attack
in immediate circumstance or where that threat is imminent.
The good thing that the War Powers Act does is not--or an
amended War Powers Act could do, or a new statute that
accomplishes something similar, is not disable the President
from continuing the use of force. Right? So if you had a
funding cutoff after 60 days, for example, that automatically
takes effect. It is not that the United States can't fight the
war any longer. It is that it requires Congress to vote to
fight the war if it continues. This is a straight-up political
accountability mechanism that is designed to make the American
people and their representatives feel and bear the costs of
war.
The Chairman. Dr. Spalding.
Mr. Spalding. I think that despite the fact that everybody
else, you know, discriminates when you get into particulars, I
think in the broad sense, there is probably great agreement
which is that, at one extreme, the President clearly needs to
have the ability to respond to immediate threats, which could
be somewhat broadly defined, but on the other hand, the actual
taking the United States into a situation of war, in which the
whole country is at war with another country, or a broadly
determined sense of what war is, I don't think there is much
discriminate there.
The harder cases are all those things in the middle that I
think are somewhat unanswered. I mean, the Congress, they did--
the Convention did specifically use the word declare war, which
I think they meant a formality of taking us into a situation of
warfare.
The other thing I think you should think about is on this
notion of--if the President has done something, there should be
automatic cuts. And within--Congress can do that at any moment
if they choose to. They don't need a--a certain amount of time
for it to occur automatically. I think it is--Congress should
make those decisions and push back at any moment they choose to
do so.
The Chairman. But with respect, I mean, Congress won't, and
that has been one of the problems. I mean, that is one of the
reasons why I think having this hearing and trying to look at
some of these issues is so incredibly important. I am focused
on war powers right now, and you know, we have--we back in 2001
and 2002 we passed an AUMF. I think like 17 percent of the
Members of Congress who were present when we voted for that are
still here.
And yet, when Republicans were in charge, now Democrats are
in charge, we just don't have the political will to readjust it
or to sunset it or to have these debates. I mean, we should,
and there is nothing that prevents us, other than sometimes
partisanship gets in the way. Sometimes when the President is
somebody of our party, we don't want to put that person in a
bad light.
But the fact of the matter is, I don't think any of us who
were here, 18, 19 years ago, thought that we would still be
using that same AUMF to justify the military actions that we
are taking today. And if you think about it, if we don't do
anything, a hundred years from now, you could have a President
go back to the 2001, 2002 AUMF to justify some action.
Part of the challenge here is that, yeah, we can
affirmatively do some stuff, but I think we are going to have
to put some checks and balances in place that force us to do
some stuff. And people can vote whatever way they want.
I am going to yield to Professor Prakash in just 1 second,
but my view--and I have said this because I have been very,
very frustrated about this--and my friend, Mr. Cole, and I, we
share this concern over these AUMFs that were passed a long,
long time ago. I think we do such a disservice to the men and
women who are in harm's way that we don't even discuss these
things.
Our mission in Afghanistan, for example, has changed so
many times and then the AUMF is interpreted to justify a number
of military operations around the world. And it just doesn't
seem right.
I think a lot of times, we don't want to take on some of
these things because they are controversial. Look, when you
cast a vote on war, it is a tough, tough vote. It is probably
the toughest vote anybody takes. We have had members who have
voted for some conflicts that were popular at the time that
then became unpopular, and they have to deal with the political
repercussions, and I am sure the reverse is true.
But that is our job, and I think sometimes we are guilty of
moral cowardice when we don't take on some of these things.
What we are trying to figure out is, are there ways, no matter
who is in charge, no matter who the President is, that when we
are dealing with some of these issues, where clearly our
authority is being usurped, that if we don't have the moral
courage to act, should there be some sort of a procedure or
process in place that forces us to deal with it?
I will yield to Professor Prakash, and then I am going to
go to Mr. Cole.
Mr. Prakash. Well, Chairman, I completely agree with you.
Political scientists describe a rally-around effect once a war
has begun and the war is very popular. It will be very hard at
that point for Members of Congress to pass a statute that cuts
off funding over the President's expected veto. I think
expiration dates serve useful purposes. Right? Library books
come with a date that you have to return. If you don't have it,
you will just keep the book for months or years, right, because
you might eventually get around to reading it.
I think Professor Spalding and I have a difference of
opinion on the scope of the war power. The power to declare war
is the power to go to war, to use military force. And in the
18th century, most wars were declared from the mouths of
cannons in attacks. They weren't actually started with a formal
piece of paper. This power was given to Congress so that
Congress would decide whether to wage war. Full stop.
No early President ever thought that they could just use
force against a foreign nation. All right? All the uses of
force in the early years were authorized by Congress in the
Washington administration and the Adams administration, et
cetera.
So I think the Constitution has a belt, rope, and
suspenders approach to war powers. You decide whether to wage
war, you can decide how to wage it, and you can decide to cut
off the funds. But relying upon the last thing as the only
means of curbing wars is a mistake.
And finally, the emergency point. If you gave the President
emergency authority to use military force until 10 days after
Congress next met, that would be sufficient for him to deal or
her to deal with the emergency, and then you would decide
whether to continue.
The Chairman. Right.
Mr. Prakash. And I don't think there is anything wrong with
that.
The Chairman. No. I appreciate that. The situation we are
in right now is that if Congress were to vote to cut off wars,
they could have cut off funds for a war that a particular
President doesn't want to admit was failing or was wrong, we
would need a supermajority because we would have to override
his or her veto.
And so it might make sense, or at least be worth
considering, that Congress put in a provision where after a
period of time if Congress didn't vote, that Congress would
automatically cut off the funds or something like that.
I studied history in college, and you read the books on the
war in Vietnam, for example, and one of the frustrating things
is, you read now, after all these years, all these accounts of
how Presidents knew that it wasn't working, but the issue of
credibility and saving face took precedence over making a
sound, rational decision as to whether we should continue it.
And again I think that is why we need to figure out other
processes or procedures we can put in place to serve as better
checks and balances.
I thank you. I want to yield to my friend, Mr. Cole.
Mr. Cole. Just to add onto that just quickly to make a
point, I mean, it is awfully hard to cut off funding when there
is American forces in the field. I mean, just to tell you, I
don't care which side of the debate that you are on, it is just
extremely difficult. And I think about the Vietnam era. You
have to remember, most American forces really weren't in the
field by the time that decision was made. They were out of
Vietnam. We had training missions and we mostly were fighting
an air war in the country.
So really the executive branch had extracted most of the
American ground troops. So it became easier. And that is not to
take anything away from what those folks did. I think they got
us out of an unpopular and unwinnable war, but it is hard.
First of all, I want to thank all four of you. I really did
diligently read my homework assignment this weekend, and I
thought there were a lot of really excellent suggestions in
there, things that we can literally pick up and do
legislatively. Your suggestion, Doctor, about bulking up staff
is certainly one of them, or having a legal arm that is
commensurate with the legal resources that we, ourselves, have
placed at the----
And I would nominate Mr. Raskin to head that up for us, but
at the--have an executive branch, that makes a lot of sense.
Putting determinative time limits on emergency powers so that
within a few weeks, the next Congress has to act to move--those
things make a lot of sense to me, and I actually think those
are things, when we get done with our hearings, maybe we could
sit down and work on together.
I am going to pull your attention, though, to two larger
trends and get your comments on them. Because when I see
behavior change inside a political institution over time, it
usually tells me something outside the political institution
that impacts how the actors perceive themselves and what they
are doing is going on.
I think about my own congressional district. I live in a
district that voted for Dwight Eisenhower twice, that voted for
Richard Nixon in 1960, 1968, and 1972, by ever greater margins,
that voted for Ronald Reagan overwhelmingly twice, and voted
for George H.W. Bush twice. And in all that time, there was a
Democratic Congressman there, two different figures, and only
one time did their party achieve their objective.
I look at it now. I will promise you this, if I didn't vote
the way my constituents vote Presidentially, I would not be
there the next time. And in the upcoming elections, the guy
that used to run politics--and this has changed dramatically in
my time in political life which began in the late 1970s to
now--you know, about 95 percent of the people that vote for
Donald Trump are going to vote Republican for Congress, and
about 95 percent of the people who vote against the President
or for the Democratic nominee are probably going to vote
Democrat. That is not like any other--you know, so this
polarization inside the population really affects what happens
inside the institution.
And to think that politicians will ignore that for the sake
of defending institutional prerogatives, I think, is to be
naive. They didn't have to do that in the past. Literally, the
Congressman and sometimes--sometimes it was more important
locally than the President of the United States. We don't live
in a culture where that exists any longer.
My last election--or in 2016, I happened to mention to a
friend of mine that Donald Trump got 66 percent of the vote in
my district, I got 70. And he goes, I guess that means you are
independent. And I said no, if we get into a fight, I will keep
my four, and he will keep his 66. So that is kind of the way it
works. And I see my Democratic colleagues in much the same
position in their respective districts.
So I am just curious how you think these larger forces,
because they are not easily correctible by tweaking
institutional changes--as important and useful as I think the
things you have suggested would be--how did those things get
let loose to where we have them? And I will tell you, we live--
effectively, politically, we live in a constitutional republic
full of checks and balances, but we operate in a parliamentary
system politically, where there is a prime minister--we call
him the President--and where it is very difficult for anybody
of that prime minister, that President's party, to consistently
vote against him.
It has to be a really dramatic moment, and it is a high-
risk moment politically for--any time you do it on a major
issue. It is not very often you consistently--well, forget
consistently--if it is a big issue, you can do a lot of
independence, but it is very difficult. So, one, how did we get
there? Two, how to get out of there. And I will start--since
you are diligently putting your notes down, Ms. Belmonte, I
will start with you and just kind of work across.
The Chairman. Just make sure your mike is on.
Ms. Belmonte. Well, I think one of the things that has
happened in the last 15 or so years is a lot of Americans just
have lost faith in the electoral process in general. You add
the cumulative effect of gerrymandering on behalf of both
parties, the Shelby decision, Citizens United, two elections in
the last 20 years where the winner of the popular vote didn't
prevail in the electoral college, and the impact of that is
that a lot of Americans have just checked out, who have lost
their faith in this body in looking after their interests.
Forty-one percent of eligible voters in the last Presidential
election didn't vote at all.
And I think that what you guys could do, perhaps, is change
the tone. A lot of people feel that it is just white hot
meeting white hot at all times, and, in the face of that, it is
exhausting and really makes people lose faith that the
institutions we have can work.
Mr. Cole. Dr. Spalding.
Mr. Spalding. I guess the one thing I would put out here
is, I think there are large numbers of people in both parties
but especially in the kind of movement that elected the current
President--and this is no comment on him or what he is up to--
who are increasingly of the opinion that it is not clear who
now makes the laws anymore.
When you have a situation where agencies, departments,
unknown people somewhere down in the bowels somewhere are
writing what, for all intents and purposes, are laws at, you
know, numbers of many thousands versus hundred-and-some, and
oftentimes that then gets enforced and adjudicated within the
same body. And that----
Mr. Cole. Could I----
Mr. Spalding. I think that pushes a lot of people to
wonder, what is really going on here? And so there is a lot of
frustration about that.
Mr. Cole. I want to agree very much with that. And it is
actually--and one of you mentioned discussion about the REINS
Act. But this idea of forcing Congress, at some level, in some
way, to either legitimize or knock out rules and regulations I
think is a really good idea. I mean, we need to put our
fingerprints on the murder weapon, so to speak, one way or the
other and go from there.
But, you know, a lot of times--and our leaders do this--and
I don't say this critically; it is one of their jobs. You know,
you will see leaders protect Members from tough votes because
they don't want to risk their majorities. And I have seen it on
both sides, where they might not want to vote on a war powers
thing because I don't want to put my people out there and risk
not just them but also the majority itself.
So, I mean, that is, again, building in institutionally
things where we are forced to do exactly what you suggest. And,
you know, I have a lot of colleagues on both sides that like to
rail against the administrative state, but they certainly
wouldn't want to have to vote on all those rules and
regulations, because they are high-risk votes.
Mr. Spalding. So just----
Mr. Cole. If you represent a rural district, just try
voting for waters of the U.S.----
Mr. Spalding. Right.
Mr. Cole [continuing]. And go home and explain that to any
farmer in your district. You are going to be in big trouble.
Mr. Spalding. So just to finish my point. People will like
or dislike the policies. That is not my point here. The
principle of the American Constitution is consent, which means
responsibility. And it is not clear who is responsible anymore.
Mr. Cole. Uh-huh.
Mr. Spalding. And I asserted a Republican Congress to check
a Democratic President and, now, vice versa. There has to be
accountability.
I am not against all delegation. Some delegation is
necessary, given the scope of government. I am open to being
persuaded about this question about how to deal with
authorization of use of force--that is a problem and sunsetting
may be a good solution.
I think it is important to kind of take a step back and
recognize the reality for what it is. A lot of what goes on for
governing this country, it is not clear who is responsible for
it. And that has given the Executive a lot of running room
that, in my opinion, they ought not to have, can be misused,
and, electorally, they can take a lot of credit for things that
they had nothing to do with.
But, a lot of times, you guys don't have a lot to do with
that either, because, you know, a lot of the big laws that
Congress passes say you shall do this, you shall do that, but
the details are left to other people to determine. And the
Executive then can step in, through their political powers and
appointees, and direct those actions.
Laws are meant to be general laws. This is your problem,
right? Laws have to be general laws. But the actual
administering of government requires more and more and more
detail. That is where the Executive has an advantage. Because
if your reaction is, well, we need to get more detailed in our
lawmaking to control all this, you actually have to think about
the extent to which you actually are granting more power to the
Executive, because the executive branch is the one who is going
to administer it and execute those things.
So I think that stepping back and looking at it in those
broad terms are important. And I would say that the changes
over time--again, agree or disagree with what the policies or
the objectives were, just the changes over the course of the
20th century in terms of how we govern, regulations and laws
and all of that--has changed the extent of how our system
works. And that is the situation in which we are now operating.
Like the policies or not--and you, as an institution, are
trying to get back in control of your authority, which is
lawmaking. And you have a lot of the, kind of, basic, hard work
of legislating in committees and whatnot. That is why, although
it is not the exclusive answer, I think getting control of the
budget is really important. Historically, Presidents would sit
in fear when Congress decided to get control of an agency and
get rid of somebody. Your budget power is a strong power you
can employ to get control of the actions of the government.
Mr. Cole. I would tell you, before we move on, we actually
have control of the discretionary budget. You know, we are in a
debate right now over coronavirus. If you looked at the Trump
budget, you will see cuts for NIH, CDC, whatever. If you look
at the budget the Republican Congress passed and a Democratic
Congress now passed, CDC funding in 5 years is up 24 percent;
NIH funding is up 39 percent; strategic stockpile is up almost,
you know, again, 34, 35 percent; Infectious Disease Rapid
Response Fund, a Republican idea, put in now more money in
there.
So, actually, the budget, it works. The problem tends to be
Medicare, Medicaid, Social Security, the entitlement stuff. We
actually control that budget in ways--again, just look at any
President's budget--President Obama, President Trump, anybody
else--and then look what is there at the end and see if they
look remotely alike. They really don't.
I mean, appropriators really are--I say this as one--pretty
much give-and-take kind of politicians that find the middle or
become experts in areas where they really--you know, I think of
our friends Chairman Upton, when he was chairman, and--gosh,
who was his counterpart? Think of 21st Century Cures, a great,
bipartisan, overwhelming vote that probably had more to do with
medical innovation and streamlining and research than anything
else. So, actually, that kind of stuff we do pretty well.
Mr. Spalding. I don't disagree with that. My only point is,
if you don't like something the administration is doing in
terms of executing one of your policies, one of the most
powerful things you can use is the phrase, ``no money shall be
spent on . . .''
Mr. Cole. Yeah. Couldn't agree more.
Dr. Pearlstein.
Ms. Pearlstein. Thank you.
Backing up for a second to your question about the causes
of the intense polarization, I included in my testimony--and
there has been some wonderful political science done that
documented exactly the sense that you were describing about the
polarization of your district and others across the country.
That is real.
And its causes are, I think, many, most of which are beyond
my pay grade in the sense that, right, I am a constitutional
law professor. But I do want to flag a couple because they are,
potentially at least, within Congress's ability to engage or
change.
I think one that may not fall into this category is the
extent to which the existing primary system favors non-moderate
members of both parties. So the most motivated voters come out
for primaries, and that tends to favor less moderate
candidates. And that is a significant problem. For this, you
need an election law scholar and an election law hearing, but
that is something I think we can't underestimate.
Equally, money in politics is a growing problem. It has
been a problem for a while, but the ability of outside groups,
of both sides, to spend effectively on limited amounts of money
has also tended to increase polarization. It favors the
extremes. That is where, often, the money comes from, and that
is a problem as well.
Social media requires some attention that has been not just
because of outside interference but internally becomes a, sort
of, source of growing polarization. It makes it easier. And
that is something that requires, I think, congressional
attention, ultimately, as well.
And then, finally--and this gets back to more in my neck of
the woods--the response in the executive branch to the reforms
of the 1970s, which we talked about some--the War Powers Act,
the National Emergencies Act. There was a, sort of, suite of
legislative efforts to, in response to perceived excesses of
the decades before, constrain executive power. The response
within the executive branch, and in particular among executive
branch legal counsel, has been to very effectively, over
decades, explain, develop interpretations of both the
Constitution and those pieces of legislation that effectively
make them toothless constraints.
Now, it is not the only reason that they are toothless or
less toothful constraints, but the role of the Office of Legal
Counsel within the executive branch--some of my best friends
are veterans of the Office of Legal Counsel, but they are
executive-minded lawyers, and they are good lawyers, and
Congress has no mechanism for--we favor competition in every
other way--no mechanism for competing regularly with respect to
voicing the constitutional understanding that this is not, in
fact, the power of the Executive. We are not acquiescing to
this assertion of authority. OLC might say it; that doesn't
make it the law.
Mr. Cole. Yeah. I thought that was a great point that a
number of you made.
Dr. Prakash.
Mr. Prakash. Representative Cole, I am not a doctor, but my
parents will be happy that I became one today.
Mr. Cole. I have just promoted you.
Mr. Prakash. I think your question is very perceptive. And
I, too, feel I am little--I am not quite situated to answer it,
because it is not really a legal question; it is a culture
question.
I think the fact that there is this hearing today and that
people on the committee are genuinely interested in working
together and not trying to score points against one or some
other President, I think, is a good thing.
I think when Members of Congress model good behavior,
people are perhaps likely to take lessons. I think of Senator
McCain talking to some group where he was running for President
and someone said something about Senator Obama and he chastised
or kind of corrected that person. I think that is good
behavior. So I think tone, you know, is important for you folks
to maintain.
I think this would be bad for some of you, but, you know, I
think the gerrymandering problem is something you can fix. You
have authority to regulate Federal elections. You can set
districts for the States, and you can set them randomly. What
happens now, as you know, the State legislatures sort of cram a
bunch of Republicans or Democrats in a particular district, and
that tends to make the Representatives from those districts
more either right or left. And that is----
Mr. Cole. Let me--not to contest, but as a guy that used to
do this stuff for a living, I will tell you, that is a lot less
of a factor than most people think. My district hasn't been
gerrymandered, and it has changed dramatically. And, in my
State, every district was drawn by Democrats for 100 years. We
reached a point under that system where every seat was a
Republican seat, in terms of the congressional delegation.
So, again, look, I used to practice the dark arts, so I
understand, you know, trying to tilt the table around the
edges. But I also know that that is not really what has driven
this. I mean, I think those kind of technical solutions miss
the bigger point.
You know, when I first got here, all of Arkansas, except
one seat, was Democratic--three out of four House Members, both
Senators--right next door to my State. They are all Republicans
today. And it wouldn't matter how you drew those lines; they
are very red.
When I first got here, Connecticut, three out of the five
Members from Connecticut were Republicans in 2002. They are all
Democrats today. And you can draw the line however you want,
they are going to stay Democrats.
So there is something much deeper than politicians tilting
the table here going on in our country broadly through the
political culture. And all I am suggesting is that manifests
itself inside the institution in terms of the kind of behavior
individual Members follow or feel the need to follow.
And I say that with no judgment on either side. I am just
telling you, anybody that is up here is pretty politically
pragmatic if you are here for any length of time, whether you
are on the left or right. So that means they are usually making
pretty pragmatic political decisions, at least in terms of
their individual interests. And that doesn't mean they are not
capable of rising above that and thinking of the greater good.
I have seen a lot of instances of that on both sides of the
aisle since I have been here. But practicalities will drive
decisions 95 percent of the time.
Anyway, I have one other question. And if I interrupted
you, I am sorry.
Mr. Prakash. No.
Mr. Cole. And it is the reverse of this problem. And this
is, again, just to get your thoughts on, because you study--and
this is almost an inside-the-institution question.
I will tell you, I sat for a while in Republican leadership
and, during that period of time as an elected Republican
leader, basically not going to any of my committees. And I am
talking to other Republicans, and almost every meeting is about
how we can beat the other guys, how we can beat them
legislatively and how we can win electorally. It doesn't mean
policy doesn't come into it, and you are formed by your
previous policy.
And I suspect that is true--as a matter of fact, I know
that is true, when I talk to my Democratic friends that occupy
similar kinds of positions. The minute you become a leader at
the higher levels, you are not going to committee meetings
anymore.
I bet you I talk to more Democrats in a day than any member
of Democratic leadership talked to Republicans in a day. And
vice versa, I bet my colleagues at the committee levels talk to
more Republicans by going to their committees, interchanging,
interacting, maybe working on legislation. My friend Mr.
Perlmutter just, you know, brought a marijuana thing that
brought, my God, Christian conservatives and, you know, liberal
California people together on the same side. I don't know how
he did it, but he did it.
The Chairman. It might help fix the tone.
Mr. Cole. It might help fix the tone, yeah. I already think
you guys are entirely too mellow.
But, seriously, you know, the bigger acts of bipartisanship
that I see tend to be from individual Members, you know,
actually operating in the milieu because they are building the
relationship back.
The way we operate, leadership around here, they don't do
that. I mean, I guarantee you the leadership of the two parties
very seldom, if ever, sits down, short of a national crisis
like, you know, TARP or something like that, and says, ``Okay,
I wonder, this year--we all know our entitlement programs are
out of control. Are there two or three things we could do
together that we could--or any things like that?''
They are not having the kind of discussion we are having
right now, thanks to my friend Chairman McGovern, where they
are talking--we know we all agree the institutional powers of
Congress have weakened. I guarantee you every member of
Democratic and Republican leadership probably agree with that,
just like every Member, I think, in the body would agree with
that. You think any of them are talking about how to reassert
that? I will guarantee you they are not.
They are not sitting down, having read the papers you were
nice enough to prepare for us, and saying, well, here are two
or three things that are not particularly partisan, you know,
that are institutional, if we are going to talk about bulking
up our legal--I think that is not a partisan thing; that is an
institutional argument--if we are going to talk about, you
know, declaring national emergencies end within 6 weeks of the
next Congress unless Congress reaffirms, or if we are going to
talk about we are going to have some congressional say over
this rulemaking authority that the bureaucratic state is
churning out, whether it is a Democratic or Republican
administration. Those discussions just simply aren't happening
at the highest level.
So I say that both to highlight it and maybe to flag that
for your consideration going forward, because we have to think
of some ways that the great acts of bipartisanship don't just
start in a committee, like Fred Upton on 21st Century Cures. I
guarantee you, my friend Rosa DeLauro and I worked very well
together on funding for NIH and CDC and all that. We have a
shared consensus about: This is a national priority, we don't
care what Presidents say much, we are going to put more money
here. And we have. And we did it under Republicans, and we have
done it under Democrats. We have done it with Democratic
administrations and Republican administrations.
So there are places where I see this occurring. I see it on
the Armed Services Committee very regularly, a very
historically bipartisan committee. Yeah, they have their
fights, but, most of the time, the bills roll out of there,
like, 62-to-2 after they have gotten everything worked out.
So, you know, I don't know how mechanized--well, I would
just shoot up this flare, because we have to get our leaders
sitting down, thinking about institutional kinds of concerns as
well. It can't just be the Rules Committee. We have set up--we
have a very good bipartisan committee on the modernization of
Congress, but you have to get Speakers and leaders and whips
around the table talking about this stuff and say, ``Well, I
guess I will just set this up. And you guys go over here and
kind of think about that. We are going to try and play the real
game,'' which is getting our side back in power or keeping our
side in power and executing the President's agenda of the party
to which we belong.
Anyway, if you have any thoughts on that, fine. Otherwise,
I will just turn it back to my friend, the chairman. And I have
been doing a lot of thinking out loud, but your papers were
very provocative and helpful in that way.
Ms. Belmonte. It is unquestionable that the whole culture
of Washington has changed dramatically in the last 50 years.
It used to be common for Representatives to live in
Washington. Not many of them do that anymore. The dictates of
having to continually raise money not only for your own
campaign but for the party itself create a lot of necessity for
travel, for being in the home district.
I think of Lyndon Johnson, who was very good friends with
Senator Everett Dirksen, who would come to the White House all
the time and talk about that. I don't imagine those kind of
bilateral relationships, bipartisan relationships exist
anymore. And I think that has just really undercut not only the
willingness but the opportunities to build the social capital
that can lead to the places where compromise can be struck.
I think the dramatically changed media landscape has played
a huge difference as well. It would have been really difficult
for a first-term Representative prior to the age of cable news
and the internet to just catapult to the national stage and
develop a reputation of being a rebel to the party leadership.
That would have been really difficult in the age of someone
like Tip O'Neill.
And all of that collectively, I think, has created the
opportunity where you are not governing as much as you used to
because of the other dictates on your time and the travel.
Mr. Spalding. I agree with that. But I think, to put it in
the context of what we are talking about here, what you have
described is, itself, a symptom of the general problem we have
already kind of laid out. I think we to think more about
politics, which I don't necessarily mean in a partisan sense
but in a grander sense. Congress has shifted authority to the
executive branch, and you have to think about the political
implications of that.
You know, the stories of the past, right, people would come
to Congress, because that is where the power is, to get
something done or prevent something. That is not as true
anymore. And, largely, what do they do? They want to go lobby
the administration, because that is where the real decisions
are made. The political balance of power has shifted. And, as a
result, I think that has changed how a lot of people think
about their own political interests.
Remember, in ``The Federalist Papers,'' Madison tells us,
the key is to make the interests of the man, meaning you
folks--connect that with the place. You have an interest in
your institution. And that is key to making this work.
Your example, I think, is exactly right, which is that a
lot of the bipartisanship is kind of personal bipartisanship.
You know this person; you work out something. Rarely is there
that type of bipartisanship in which the individuals, even
though they disagree, think institutionally.
Congress very rarely thinks as an institution. It either
thinks individually as Members, my own reelection, or how do I
get to be President of the United States because that is where
the political power is, or, increasingly, because of that shift
of power, leadership in both political parties thinks the more
important thing is to have partisan control in order to support
the Executive in their party because that is where the real
authority is, as opposed to, whether it is a Republican or
Democrat, having some institutional separation and sometimes
pushing back, because that is necessary to defend your
institution.
And Congress doesn't think that way as much anymore
because--part of it is that the political landscape,
intentionally and unintentionally, has shifted the focus of
politics. Morris Fiorina wrote a famous book, ``Congress:
Keystone of the Washington establishment.'' That was back in
the late 1980s. Now, I think that is no longer true. I think
the President, by which I mean the bureaucratic presidency is
now the keystone of the Washington establishment.
Mr. Cole. Thank you, Mr. Chairman.
The Chairman. Thank you very much.
And let me just say, I agree with everything Mr. Cole just
said. The thing is, though, is the tone, right? That is very
difficult to change, given the attitudes in the country and the
media and the polarization on a lot of issues. Maybe we all
need to be in intensive therapy up here to try to work some of
our issues out.
But short of that, I mean, the question is, how do we do
our job, and not avoid doing our job because it is politically
inconvenient or it is uncomfortable for us? And are there
processes and procedures that we need to put in place? We
talked about war powers, but we have national emergencies that
were declared when Jimmy Carter was President of the United
States that are still in place. I mean, that doesn't make any
sense, right?
And maybe, going back to what Mr. Cole said in his opening
statement, we are not going to be able to fix everything, but
maybe there are some areas where we can actually, you know,
make some tweaks and legislative fixes that will actually
eliminate some of the stuff that I think we all can look at
right now and say, this doesn't make any sense.
Mr. Hastings.
Mr. Hastings. Thank you very much, Mr. Chairman.
And toward that end, one thing that we can do is use the
subcommittees of the Rules Committee to perhaps dig into the
weeds a bit more and come up with a handful of solutions.
Like Mr. Cole, I read a lot of this material, and you all
have done us proud with your presentations.
Regrettably, everything around here is top-down. We have
been here an hour and a half, and we have heard from the two
top members. And that would be virtually the same thing if you
were in committee. You hear them bragging about how he and Rosa
DeLauro got along. Well, there is something called a manager's
amendment at the end of that. And if you are a backbencher, you
have hell to pay to try to get some understanding inside of
that particular sphere.
I think what happens here and what has happened--and I am
the longest-serving Member on this--not this committee, but in
this committee now, I am the longest-serving Member. I have
been here 27 years. And when I came here, it was a pleasurable
place. It is no longer. And I fear that it will never be again.
I served on two little committees that existed then, the
Post Office Committee and the Merchant Marine Committee.
Amazingly, I got more legislation done in 1993 than I have in
2019 and 2020. And that was because of relationships.
And, yes, they did stay here, but more than stay here, they
got to know each other. And what happens today is we don't get
to know each other. After I was here maybe 6 years, you could
just point to me somebody on the floor, on either side, and I
could pretty much tell you where they were from, what their
committees were. And that is because we got to know each other.
And that is not happening.
And we are driven largely by our constituents that also
call us to have this immense polarization that is going on in
this country.
Mr. Spalding, you said something that distressed me. And I
promise you I am not going to use 30 minutes. But a part of
what you suggested in your original commentary was that the
courts are not going to solve our problems. While I tend to
agree, it is distressing.
You went further, in a second portion, to say that the
courts generally are going to side with the administration. And
that doesn't mean this administration; that means any
administration. And I have seen evidence of that, as have you.
But I think those Article III judges have a specific role
to play. And just in those two little committees that I served,
I could write a letter, and in less than a month I would hear
from the bureaucracy. I can get 100 Members to write a letter
now, and I will be damned if we will hear from the bureaucracy.
Not this administration; let me criticize every one before
this administration, including--we have spent a lot of time
here on the War Powers Act. I criticize Barack Obama actively
about Libya and the War Powers Act. And push back real quick
and I will stop.
All this business about ``Congress doesn't have the time to
declare war.'' How did Franklin Roosevelt get those Members to
declare war in the Second World War? They didn't have no damn
internet. You understand? They didn't have no airplanes that
flew fast. But they managed to get back here and to declare
war. And that is our responsibility.
And I don't care--I don't want to take away the President's
powers to go forward and to do whatever he or she feels is
necessary to defend the United States of America. I want to
collaborate with that President. I want to have a clear
understanding about why we are doing what we are doing.
I will leave it at that, because there are so many members.
And if you all don't mind, I will go offline and write a few
questions to you. But, remember, we would be well-advised,
those of us here, not only to hear your words but to remember
that, although we may be of a particular philosophy, ideology,
persuasion, and parties, we are also stewards of this
institution. And we owe it to those who come after us to leave
it as strong as it can be so it may best serve the American
people.
And, Dr. Pearlstein, I had originally wanted to talk with
you about something Mr. Woodall and others and I have spent a
lot of time on. One more vignette from my history. I went to
very segregated schools--very. And by that, I mean I rode 30
miles each way to go to high school, past three white high
schools.
I got to a high school that did not have a library, did not
teach foreign languages, did not teach geometry. And somehow or
another, the elementary school I went to was four grades.
But you know what? I knew who the Governor was. I knew who
the Congressperson was. I knew who the superintendent of
schools were. I damn sure knew who the sheriff was. And, all
things considered, they were doing a better job of teaching
civics, even though they didn't deliver newspapers to our area
of the town. The teachers would somehow or another cut out old
newspaper articles and bring them in and we would have civics
lessons.
I maintain that something has gone awry in this country
when it is that one-third, as you said, of high school or
college students--college students don't understand the
dynamics of separation of powers.
Thank you very much, Mr. Chairman.
The Chairman. Dr. Burgess.
Dr. Burgess. Thank you.
And thanks to our witness panel for being here today.
A rare moment, I find myself in agreement with Mr. Hastings
about the teaching of civics. And----
Mr. Hastings. You ought to try it. It doesn't hurt.
Dr. Burgess. Yeah, it does. Yeah, it does. Let me correct
you on that.
And I also agree with Mr. Cole about the fingerprints being
on the weapon. I just disagree that it is--maybe a weapon to
inflict a self-inflicted injury, not an injury on someone else.
As--and I have not spent nearly the amount of time here in
Congress that other people have, but just my observation is the
erosion of Article I powers is something that happens
gradually. Sometimes we see rather pronounced demonstrations.
Chairman McGovern and I, last night, had a little
discussion and disagreement about this supplemental bill that
is going to go to the floor under suspension. Yes, coronavirus
is an emergency. An emergency was declared in January. The
Secretary of Health and Human Services enacted a travel ban at
the end of January. We spent the entire month of February in
one of the committees of jurisdiction that I also sit on, the
Energy and Commerce Committee, and did not have really a single
hearing. We added about an hour onto a budgetary hearing right
at the end of February.
But we are the committee that is supposed to get the data.
We are the subject-matter experts. We are supposed to interview
the people from the administration and come up with the
information to help our friends on the appropriations side come
up with the correct answers and the correct funding for those
answers.
But, you know, real-time, real-world, we have given that up
in this crisis. And this generally does happen at the time of a
crisis. It is not the first time it has happened. I probably
predict it will not be the last time it is going to happen. But
every time we allow that, as the United States House of
Representatives, we lose something in the translation.
And there was a lot of criticism when Secretary Azar came
to our committee last week. And, again, he was there for a
budget hearing, which I was grateful for. We need to speak to
our agency heads about their budget. And then, right at the end
of it, he had the hour of coronavirus discussion. There was a
lot of criticism for the administration's budget that was
produced. Mr. Cole has already referenced, there were some cuts
in CDC, some cuts in NIH.
Well, that was the President's budget. And, yes, it was
prepared in December before we knew what was happening in
January, so, yeah, you do have to make adjustments as the world
changes. And it can change quickly, as we all know. But we
can't complain about the President's budget when we don't do a
budget.
And we are not doing a budget this year. I take some
exception with what my friend from Oklahoma said. It is not a
budget. It is an appropriations agreement that we are coming
to. It is a spending agreement. But it is not based upon a
budget. I actually believe we should do a budget and we should
budget for emergencies, because we always seem to have an
emergency every damn year.
But we are not doing a budget. I don't see that we have the
bandwidth to criticize the administration for getting their
budget wrong in December before they knew that this crisis was
going to happen. They propose; we dispose. We are the ones who
are supposed to control those budgetary pens and write that
budgetary agreement.
So I realize that is more of a statement than a question. I
will be interested to hear if anyone has any comment on that.
Also, just on the subject of the budget--I am sure Mr.
Woodall will do a much better job, if he has not already done
so. Mr. Cole already alluded to the two-thirds of the budget
that we no longer control in the appropriations process. And,
again, that didn't happen overnight. It has happened little bit
by little bit. I think that needs to be reversed.
I agree with Mr. Cole, those would be very, very hard
votes. They would probably be career-ending votes for some
Members. But, honestly, that is what we are supposed to do:
make those tough votes and be held accountable. And if we are
not representing the folks back home, they will get a better
idea about who can.
I recognize how hard it would be to reclaim all two-thirds
of that budget, but I would welcome anyone's advice or
suggestion to begin to bend that curve back a little bit and
bring that power back into the legislative branch where it
belongs.
All kinds of mandatory spending out there. Yes, there are
places, I think, where we should perhaps think about bringing
some of those programs back on budget. And I realize the reason
they have gone off budget is because no one wants to touch
that. That is like the third rail of politics; you touch it,
you die. But we need to do it for the sake of the generations
who are yet to follow us.
And, again, I realize this has all been more of a rant than
a question, but I will be happy to get your input on any of
those observations. I guess we will start at this end this time
and go that way, since Mr. Cole went the other direction.
Mr. Prakash. Well, thank you, Congressman.
I, too, share the concern that two-thirds of the budget is
on autopilot and never voted upon by Congress, because that
obviously leads to a situation where some things are never
reconsidered or relooked at because they are seen as
sacrosanct.
I wasn't prepared to talk about the budget process or the
lack of a budget process for the entitlements, but, my
recollection is that Ronald Reagan got together with Democrats
in the House and passed the Social Security Reform Act. And I
think it is possible--I was hopeful that President Obama--he
had a commission that was headed by Bowles and Simpson, and I
was hopeful something would come of that. I think that is what
needs to happen in order for people to have cover to do
something that would otherwise be super-politically-
unpalatable.
I think you are right that a lot of people would try to
exploit the situation, saying you voted to cut this or that.
But it is sort of irresponsible to just spend money without
thought for decades upon decades.
Ms. Pearlstein. Thank you.
I guess I would like to respond generally to the concerns
that I think both you and Mr. Cole expressed, because I think
they are related. How do you carve out, in a highly polarized
political environment, space for serious conversations that are
politically difficult and in many respects politically
impossible in different ways?
Congress used to do a better job at creating bipartisan
spaces. And you can call these, if you were in any other
organization, institution-building spaces. But Congress did
this through, for example, creating bipartisan commissions. It
has done that in the past on immigration and after 9/11 and in
many other circumstances. And these commissions, for some
reason, have gotten a bad reputation as never quite producing
the results that they want, but they sometimes do produce
results. And they certainly produce results more often than not
having them produces results. So those kinds of commissions.
Congress having its own agreed-upon source--CRS is a great
example. GAO, historically, has been a great example. As our
world becomes technically increasingly complicated, a
congressional agency, like OTA--it doesn't have to be the
Office of Technology Assessment; it can be a new and better
version of the Office of Technology Assessment, but something
that enables Congress to have at its own bipartisan disposal
its own agreed-upon set of facts and understandings about how
social media might be effectively regulated, why the problem of
emerging infectious diseases gets worse, what we can anticipate
for growing healthcare costs as the population ages over years.
These are all problems that require not only the ability to
meet together across bipartisan spaces and times but also
having an agreed-upon set of information. And we are, as a
society, at a point where even that is becoming difficult.
Congress is in a wonderful position to recreate some of
those spaces. And while one might be limited to one-third of
the Federal budget, that is an enormous amount of money. OTA,
when it was zeroed out, had an annual budget of, what, $20
million, $30 million a year, right? That is a lot of money to
me, but I don't think it is all that much money to you guys.
So I guess I would--I talked about some of this in my
written testimony. I think those organizations are important
and useful, not only because they serve an educational and
information-generating function but because they also make it
possible for you to begin to remember or regenerate those
muscles of working together institutionally that have atrophied
over recent decades.
Mr. Spalding. No, I agree with the concern you have raised.
And I guess I would premise it by saying, it is often the case,
among others who have suggested reforms in the past, we are
always looking for technical fixes. People always want to find
the silver bullet. And I guess if there is a theme here, my
theme is, no, it is actually the hard work of governing that
needs to be reestablished.
And the fact that two-thirds of spending is automatic,
there is still a third. But, you know, it really is the
principle of the matter. You guys are the legislative branch,
and that is your responsibility.
I don't disagree with Congressman Hastings' point. My point
was not to neglect using the courts. The courts are there for a
purpose. It is just that, I am more interested in seeing
Congress assert itself as an institution as opposed to running
to the courts. It's the same thing I told the Republican
Congress when they wanted to do that when they had the
majority. You want to be institutionally stronger, it seems to
me, and relying on the courts makes you weaker.
And the other general point I would make is that I am
struck by how important commissions are, but the question is,
how do you structure them? I think one of the most successful
ones that solved a difficult problem was the BRAC Commission.
Congress needed to shut down a bunch of bases, and no one
wanted to do this because it was in their District. So you ask
the commission to do it, and Congress, as a whole, does it
together. Maybe there is something like this here.
I am not sure it is a particular piece of legislation. You
are going into an election where it is not clear who is going
to win, but you are also in an election cycle. You need to do
something where you figure out what the pieces are. There are
going to be tradeoffs. We are going to reduce this power--that
might be what the Republicans want--and, in exchange, we are
going to reduce this power that the Democrats want to reduce.
There will have to be some sort of compromise. But then you
could have it not go in to effect until after, not this
election, but maybe the one after that. It would be put farther
in the future.
It has to be a bipartisan reform. I think it has to start
by reestablishing the premise of the general matter as we have
been discussing it. I don't believe you can't bite it all off
at once because it would be politically suicidal, in most
cases.
But, I mean, take the two-thirds of the budget that are
automatic. Well, you might keep that going, but at least if you
take a vote on it in a regular budget you get into the habit of
voting for budgets. And those kinds of things, I think, are
actually quite useful.
Ms. Belmonte. I think that, in addition to the tone, the
context all of this is happening in really matters a lot as
well. You know, for millions of people in the United States,
the promises of globalization just haven't worked out--you
know, the decline of American manufacturing, the winnowing out
of many communities that had a local employer on which many
people depended that is no longer there, the opioid crisis. And
we are watching our country shift dramatically--an aging
population, the decline of a college-age portion of our
population. There are so many things converging, and it just
amplifies that sense of helplessness and hoping that you will
make those hard decisions on that 70 percent of the budget that
is mandatory spending.
As we watch income inequality just continue to exacerbate,
we have a distressingly large number of Americans who can't
handle an unexpected $400 expense. And so a sense of
desperation rises in diseases of despair.
I just hope that we can make those hard decisions, because
the fate of our country is hinging on what 535 people in this
body do.
Dr. Burgess. I just have one further observation, Chairman.
I am fortunate to serve on the Committee on Energy and
Commerce. We, over the past 5, 7 years, have passed several
landmark bills: the track-and-trace bill to secure the safety
of our pharmaceuticals in this country. Certainly 21st Century
Cures was one of those big bills. A year ago, we passed
something dealing with opiates called the SUPPORT Act. Several
years before that, we repealed the sustainable growth rate
formula and the follow-on from that.
The one thing I have learned from passing those large,
landmark pieces of legislation is it doesn't end at the signing
ceremony. You have to watch it like a hawk over at the agency.
If you don't do--I would even hesitate to call them ``oversight
hearings''; they are implementation hearings. Has it been
implemented according to congressional direction, or has there
been some interpretation?
And I could cite you numerous examples, but I won't. But it
is a constant feature of our--at least our job when we write
those authorization bills in the other committee that I am
fortunate enough to be on.
When we write those legislative treatises, we need to have
the courage to follow them through. We all have busy schedules.
There is never enough time in the calendar. There are never
enough hearing rooms. But we need to make it a priority and
make sure that we do it.
With that, I will yield back.
The Chairman. Thank you.
Mr. Perlmutter.
Mr. Perlmutter. Thank you.
Just a lot of thoughts, starting with ambition. And I think
each of you mentioned Madison and ambition and that that would
be sort of a limiting factor to the loss of power. The other,
sort of, contrary philosophy out there is the path of least
resistance. And of those two, path of least resistance has been
winning. And, honestly, I want to thank Mr. McGovern and Mr.
Cole, because I think today is going to be the last day that
the path of least resistance wins automatically.
I will give a quick story. There are a lot of people that
have questions.
But my backyard--I have two backyard neighbors, one a very
conservative family, another pretty liberal. And a few years
ago, I am cleaning up in the backyard, and the gal, pretty
conservative gal, comes up to me, and she goes, ``I can't
believe Obama has 212 emergency actions.'' I went, ``What? What
are you talking about?'' ``He has brought forward 212 rules or
something based on emergencies.'' I said, ``Well, that can't be
true.'' So I kind of, like, stepped back and--you know, he had
done a lot of emergency things, starting with DACA and a bunch
of other stuff.
Well, about 3 months ago, I am in the backyard. The other
side, the liberal guy, he says, ``That Trump, everything he
does is based on an emergency. There aren't that many
emergencies.'' And, you know, that is sort of what has been
going on here. We have allowed the power to move to the
executive branch.
And, Dr. Spalding, you know, I couldn't agree with you
more. The administrative branch just keeps growing. And your
comments about policy reformers--I went back, I was looking at
everybody's slogan, you know, ``Make America Great Again'' or
``Obama for Change'' or, you know, whatever it might be. I
mean, back long ago, it was ``The buck stops here'' or ``I like
Ike.'' But now it is about some sort of change in policy, and
people look at it that way.
So I think--and Mr. Cole kind of let his hair down. I mean,
part of the problem here is we have to be intentional in
resisting this, you know, ``Let's let them do it.'' You know,
we will give them really broad discretion and just let it go.
You know, we will move on. We have to be intentional. And we
have to have some intestinal fortitude, because there will be
some prices to pay.
So I guess I would just like to ask the panel: We are
dealing with coronavirus right now. Emergency setting. And I
think that is one we could all agree is an emergency setting,
how far it spreads and how quickly it continues to spread.
Obviously, we need to address it.
So, as our appropriators, Mr. Cole and Ms. DeLauro and
others, are putting this piece of legislation together, how, as
historians and constitutional experts, should we limit this so
that we don't, again, just give something away like we gave
away earmarks or we gave away the emergency powers?
How in that context would you help us--as quick as you can,
because I want to turn it over to everybody else--you know,
kind of limit this legislation we have before us as a turning
point where, okay, we recognize the emergency, but we are not
going to just give you the keys to the car for the rest of
time?
Professor.
Mr. Prakash. Well, Congressman, that is a very tough
question. I don't really know anything about coronavirus other
than what I have read----
Mr. Perlmutter. But from just a legal drafting standpoint,
I guess, is what I am asking you.
Mr. Prakash. Let me just throw out some ideas.
I mean, it is possible that you pass an appropriation but
you don't make it large enough--or you make it small enough
that they have to come back in a month and update you with what
is going on. And maybe that is how you keep the keys to the
kingdom.
You know, my sense of appropriations is there are lump sums
and then the authorizers are supposed to tell them what to do
with it. I don't know if that is happening here or what is
going on. But if you have a sense that they are giving away the
keys to the kingdom, there is clearly something wrong with the
bill that is before you.
Mr. Perlmutter. Okay.
Ms. Pearlstein. I am, you know, like any good lawyer,
really reluctant to comment on legislation I haven't seen.
Mr. Perlmutter. Just from a legal writing standpoint.
Ms. Pearlstein. So let me say three things, very broadly,
about how Congress should think about its role as legislators,
right? Every bill, you have three moments of asserting your
views and regulating effectively. One is in directing the
Executive or whoever it is--HHS, CDC, whoever, right--directing
them specifically what you want to do. You want to, say,
regulate in emergencies? Fine. What do you mean, ``emergency''?
Do you mean something that happens every day or that is likely
to recur repeatedly, or do you mean something, for example,
that is time-limited, right, something that a reasonable
scientist or officer of the CDC would expect would not recur or
would last for a limit period of time, right?
So there is a lot to be done with drafting. You can
condition funding. If condition X doesn't occur, right, then
these funds aren't available. If condition X occurs, then these
funds become available.
So that is just at the direction stage. Then you have
options, when legislating in the first place, for imposing
monitoring. And that can be, come and testify, but it can also
be, you shall every 15 days or 30 days----
Mr. Perlmutter. Report.
Ms. Pearlstein [continuing]. Or whatever it is report, and
that report shall be detailed, and that report shall include
the guidance of whichever relevant experts you want to hear
from, and that report shall, for example, be certified by Dr.
Fauci or whoever else you want to make sure is engaged in that
process.
And you can have, you know, requirements of consultation
with Congress, requirements of consultation--you can build in
monitoring in lots of different ways, right?
And the third kind of thing you should look at every piece
of legislation to make sure it has is some sort of termination
or calendar, by which I don't mean, ``These funds run out on
May 1,'' necessarily, right, but which leaves Congress holding
the key to say, this runs out after--pick your date, right--90
days, after which time Congress must reauthorize, or after
which time whatever.
Mr. Perlmutter. Okay.
Ms. Pearlstein. So all three of those things are options
for ways that Congress can keep holding the keys.
Mr. Perlmutter. Perfect.
Dr. Spalding.
Mr. Spalding. Yeah. I----
Mr. Perlmutter. And I wanted to say one thing to you. I
mean, I think you are absolutely right. The power of the purse
is the ultimate----
Mr. Spalding. Right.
Mr. Perlmutter [continuing]. Power. This committee, last
year, when we were in shutdown, we would meet about every 2
days, hoping that there would be some compromise that would
allow us to open the government again. I mean, that is a
blunderbuss, big-time hammer to use, and not one that we want
to use very often.
But to my question.
Mr. Spalding. So I don't at all disagree with the points
that were made. Those were well-said. And I will actually make
a nonbudgetary answer, partially----
Mr. Perlmutter. Okay.
Mr. Spalding [continuing]. Which is, look, the authority
here is you are going to use your power of the purse. And the
President is in a position where he needs you to use the power
of the purse, which means you have what we call leverage.
Congress should declare a national emergency. Who says only
the Executive can declare a national emergency?
Mr. Perlmutter. You hear that, Mr. Cole?
Mr. Spalding. And you----
Mr. Perlmutter. You might put that in the bill as you guys
draft it today.
Mr. Spalding. So if you object to the Executive having that
power, why don't you do it and preempt him?
Mr. Perlmutter. I mean, he is drafting this bill today, so
that is why I am----
Mr. Spalding. And then all of a sudden you have both
branches defining what national emergencies are----
Mr. Perlmutter. Thank you.
Mr. Spalding [continuing]. And then you have a conversation
and you have leverage because it is a must-sign piece of
legislation because it has budgetary authority behind it.
Mr. Perlmutter. Thank you.
Mr. Spalding. That is an example of exerting the spending
power.
Mr. Perlmutter. Thank you very much.
Ms. Belmonte. I have nothing to add.
Mr. Perlmutter. All right. Thank you.
And I yield back.
The Chairman. Thank you.
Mr. Woodall.
Mr. Woodall. Thank you, Mr. Chairman, and thank you for
holding the hearing.
Thank you all for being here.
I am trying to think about that pathway back from here. We
talk a lot about small ball versus big ball here. And I think a
lot of our challenge is just bad habits.
I am thinking about the list of things that you just gave
Mr. Perlmutter, for example, those oversight-related items.
Well, I put all sorts of conditions in bills, but very rarely
do I come back and enforce those conditions as Congress. If
anything, I am going to go file suit and I am going to ask
Article III to enforce those conditions.
And so there are many things that we could do that will not
only accentuate the feckless Congress of today but will further
weaken us tomorrow. So what do you see as the pathway back,
those incremental steps?
You mentioned it, Professor Prakash, that we should play to
our strengths, right? There are those things that are not
naturally divisive but we have just gotten into bad habits.
Appropriations bills, right? It used to be unthinkable that you
could get to September 30 and have not worked on the
appropriations bills. Now it is probably more unthinkable that
you are really going to make time to work on the appropriations
bills at all. You will just pass an omnibus on September 30.
And that just took two decades to take hold.
So help me with those beginning steps back. I know you are
not behavioral specialists; you are constitutional specialists.
But because you have seen the pendulum swing over the decades,
help me with that.
Mr. Prakash. Congressman, I think that is a wonderful
question, and as you said, we are not the--I am certainly not a
behavioralist. I wonder if Members of Congress are conscious of
the time they spent doing various activities, and then thinking
about how they ought to reallocate it in a way that makes it
more possible for them to conduct legislative business as
opposed to the myriad of other things they have to do.
And I think, you don't do that, you don't have a sense of
what you are doing with your day. I think--and speaking for
myself, I sometimes get a message on my phone: You were on the
phone, you know, an extra 5 hours this week or something, or
you played this game for an hour, and those things add up.
And so maybe that is the small-ball reform that would
conserve your time to do things that you think are more
important like legislation.
Mr. Woodall. I serve on the Modernization Committee that is
looking at some of those items, and what we found is the best
way to do that is to get folks to focus on things. I just had
to come from another hearing to be in this hearing. But guess
what, that was transportation, and I don't want to give up the
Transportation Committee, and I don't want to give up the
Budget Committee. And I don't want to give up the Modernization
Committee or the Rules Committee either. And so here we are. My
bosses back home encouraged me to do more things less well
instead of a single thing well, but I appreciate that the
targeting is absolutely something that we are trying to sort
through.
Does anybody else have any wisdom on the steps back?
Mr. Spalding. Thank you. No, I think you are right in terms
of thinking that, through broad state, it is probably
impossible to identify them in particular ways. But I would say
there are at least three phases--again, putting it in broad
terms. The first phase is having the will to do it. You know,
Congress speaks as an institution through its legislative
function, and I believe it is actually the most powerful of the
three branches. But it needs to talk that way and act that way.
So I think part of it is just establishing the will. So that is
my psychological answer, I suppose.
Second, Congress should play to its strength. The place to
start is where you are strong, which is why I have emphasized
the budget power. And then, once you reestablish that strength,
third, you want to use that strength to exert yourself in other
areas.
Now, that is not to say you don't fight those other fights
if they come along, as you may choose, but you should have that
in mind, which means you are really taking the steps to rebuild
your core strength, and there I think you are right to do so.
Budgeting is the key power. I have always wondered, for
instance, why there are a certain number of appropriations
committees, or why you have to do appropriations in a
particular order. These are all political questions. And the
number of committees is based on the number of divisions within
the budget that comes from the President.
You could do your ordering of your appropriations
differently. You could get the easy things off the table or
save the things you want to have your most leverage over until
later. I mean, just think strategically about where your
strength is and how to use that as powerfully as you possibly
can. And I would start there, and then engage the other
questions as they come up.
If you need to have a fight over a particular
authorization, I am not opposed to that. But I think this is a
long-term problem, and part of the long-term solution is
rebuilding your core budgetary strength.
Mr. Woodall. Dean.
Ms. Belmonte. Yeah. I would echo a lot of that. I thought a
few times this morning about the famous warning in Dwight
Eisenhower's farewell address in 1960 about the military-
industrial complex, and that has happened to decreased your
power as well. There are a lot of special interests that are
continually bombarding the government, and maybe considering
how some of that might be reined in would be really beneficial
here.
Others have mentioned increasing your staff. They, they are
facing a whole host of actors that are trying to make
government work on their behalf and as well as the
administrative state; empowering and growing the Congressional
Research Service, which used to really provide an excellent
source of impartial information. And we are in an age where we
have more information at our disposal than ever and probably
know less than ever as a result of it because it has gotten so
difficult to discern what is or is not credible.
There are some proposals about increasing the size of the
House itself so people can be more responsive to their
constituents. The ratio of representatives to constuients has
changed dramatically.
Thinking through inefficiencies in government, the cert
process, the length of time people wait for clearance,
inefficiencies in procurement that leave government behind
private industry and the type of technology it can use, the
purchasing process.
And then I would repeat the suggestion of an Office of
Legal Counsel within the legislative branch.
Mr. Woodall. Well, we certainly did that with the Budget
Act and CBO, right? We were tired of getting pushed around by
OMB. So we created CBO and did a pretty good job. Now I would
say the American people don't rely on OMB for their budget
information. They trust CBO instead, and we achieved exactly
the goal that we desired.
Mr. Spalding.
Mr. Spalding. I actually agree with the notion that
Congress needs to beef up its ability to do things. One of the
mistakes of the Contract with America--and if you ask Newt
Gingrich, he probably would agree with you--is he took steps--
since he was in favor of cutting government--to cut
congressional staff and reduce our size. And that was a big
mistake if Congress wants to compete with executive. So I would
agree with the sentiment.
Mr. Woodall. Well, and of course that hammered the House
even more than it hammered the Senate because we were driving
that train. Whether it was 1994 or 2010, when I was elected,
those were our two big Article I budget cutting years and
particularly House budget-cutting that year.
So let me ask that question pointedly to you, since it is
not a partisan panel. We all want to serve our bosses well, and
generally serving the Constitution trumps every other concern
that my constituency has. If I was to paraphrase you, Dr.
Spalding, I would say that you are telling me that I am
betraying, rather than serving, my constitutional
responsibilities by shrinking Article I spending relative to
Article II spending. Is it that simplistic, that you believe
that our constitutional obligations are being subjugated to our
budget concerns?
Mr. Spalding. I think your obligations--first of all, your
first obligation is to the Constitution to which you swear
allegiance. But you are a Congressman and your obligation is to
this institution and its powers in Article I. You think that
you have powers. You have no specific constitutional powers
individually. You only have powers as a body.
You have those obligations to not only exercise those
powers but also to keep an eye on and monitor the powers you
have been given responsibility over. So let me answer it this
way. One of the tendencies that has happened over time--again,
like the policies or not--is that Congress has given more and
more responsibility to experts or bureaucrats or
administrators--use positive or negative connotative language--
but this transference of responsibility to the fact of the
matter.
In an odd way, I am actually advocating more politics, not
less. That is the Madisonian solution. The Madisonian solution
is that the branches need to compete with each other and be
strong enough to engage each other. The problem is that a lot
of the expertise that makes the kinds of decisions Congress
ought to have responsibility over has been sent elsewhere. And
having done that, you have weakened yourself institutionally in
the separation of powers back-and-forth. That is the mistake.
And so what is your answer? Well, sometimes you do have to
delegate, and modern lawmaking is complicated, and you want
people that know particulars, and so you sets up check, mostly
meaning here congressional oversight. You need to recognize
what that means constitutionally and politically in terms of
Congress carrying out its constitutional duties and
responsibilities. And I think that, over time, the
administrative state has become a real problem from the point
of view of both political parties.
And you have also fueled the ability of the executive, who
has nominal control over almost all of that, to figure out ways
to creatively use all these regulatory authorities, sometimes
poorly written laws, sometimes laws that contradict each other,
in ways that allow them to essentially govern. And so, yes, I
think that institutionally Congress is not upholding what I
think is its primary constitutional obligations.
Mr. Woodall. Professor Pearlstein.
Ms. Pearlstein. Thank you. We agree on quite a bit and,
indeed, exactly what I was thinking as you were asking your
question was about Congress disabling its ability to compete
effectively among the branches. Right? So, if the idea is
ambition will counteract ambition, part of the ambition has to
come from individual incentives, and that is a big problem. And
we talked about politics and polarization a little bit earlier,
but the other part of that is simply resources and capacity.
And you are now completely beholden to and dependent on your
supply chain for information, which comes almost entirely from
the executive branch. So that is a--putting yourself in a place
where you can effectively, institutionally compete is
essential.
There was one other piece of this I wanted to point to, and
that is, as you think about the separation of powers and your
ability to compete across three branches--there are three
branches, right? So it is not a two-way game, it is a three-way
game. And one of the large problems that is contributing to the
overwhelming effectiveness of the executive in winning this
contest, so to speak, is that both of the other two branches
are in one way or another, shirking. And that sounds like a bad
word. I don't necessarily mean it that way, but right, Congress
delegates its power to the executive, the executive acts, and
the courts say: You know, we need to defer to the executive as
well because that is the source of expertise or because, well,
the executive knows more about foreign policy than we do, or
because as a decision in this past week says, oh, I am not sure
Members of Congress have standing to sue in courts to enforce,
right, the powers that they are trying to enforce.
Now, obviously, you don't want to interfere with the
exercise of Article III courts and their ability to exercise
independent judicial judgment, but when Congress does things
like legislate to create a cause of action, right, pass a
statute that includes a right to sue. This sends to courts a
message that says, in fact, we don't want you to shirk; we want
you to be as engaged as we are. Right? And the notion is, by
adding powers, not just saying, ``Well, you take the ball,''
right; by adding powers, you better empower both branches to
fight the executive.
Mr. Woodall. Let me follow up on something you were saying
to Mr. Perlmutter of, again, some of those things we could do
to hold folks accountable. I think our work here is a little
like parenting. It is important to set boundaries, but the
worst thing you can do is set boundaries that you are not going
to pay any attention to. So, back when we used to do
appropriations bills regularly, you would get to the end of the
appropriations bill because we are reading it line by line, we
start going through all the reports that are going to be
required, and they are going to be--you are going to do a
7,000-page report on how to solve world peace and it will be
due by next Thursday. Right? And there is no expectation that
we are going to get that done. And they are going to ignore it,
and we are not going to enforce it.
Thinking about that give-and-take, maybe it is hard for us
to reclaim some of that power. It should be easier for us to
stop giving away any more power. Tell me about the interplay
between your encouragement to hold folks accountable versus the
parliamentary system we have fallen into where folks don't want
to embarrass their President, and in fact, my bosses back home
don't want me to embarrass their President, depending on where
those political winds are blowing.
Ms. Pearlstein. Sure. So a lot of different things to say
there, but let me maybe highlight one--or two. On the question
of what do you do when the executive doesn't do what you told
the executive to do, right, whether it is filing reports--the
statement of legal theories as changed under the existing
authorization for the use of AUMF, as required under the
National Defense Authorization Act that was just passed, was
due over the weekend or at latest, I suppose Monday, it has not
been received. Right? So that is a big report. We haven't seen
it yet, unless something has happened while we have been
sitting here.
So there are a couple of ways to deal with situations like
that. One is you create incentives in the individuals who serve
in the executive branch. Now, the extreme way of doing that is
by imposing particular kinds of liability. But Congress has
done that before with its assertions, the Antideficiency Act
and the Impoundment Control Act, right, trying to make sure
that individuals within the executive branch have personal,
professional incentives to do what Congress has said the law is
and not to follow an executive who says otherwise, or write an
order to follow Congress' priorities and not someone else's.
But I don't think you have to do--necessarily start with
the nuclear option, that is, necessarily start with the
individual liability for members of the executive branch
option. I think that there are other steps that you can take
short of that, including, you know, using the budgetary power,
which I entirely support. The funding simply stops if this is
not forthcoming. Congress has to exercise some judgment. Which
are the reports that are really important? Which are the
reports that aren't important? Right? Because, even within the
executive, there are only so many hours in a day.
But there are, as with these other kinds of ways of
drafting legislation, a menu of options. And rather than
thinking about enforcement as an on-off switch, think about it
as a continuum. The sort of heavy guns of enforcement are
individual liabilities or fines, for example, if this doesn't
happen. Less than that are simply a right to sue. Right? Less
than that is something like a funding cutoff or a warning. Less
than that is sort of the basic oversight functions: When this
report is due, this official is required to come testify. So
the official who is responsible for the report, the Secretary
of Defense or whoever it is, right, has to show up and
personally take responsibility to Congress if the report is not
brought with him on the day of the testimony, right? So there
is a menu of options, and Congress has all of those powers to
sort of design them as it wishes.
It depends, you know, in emergency powers and emergency
situations, you want to design that menu somewhat differently,
but all of those tools are available and I think should be used
more liberally than they have been--liberal with a little L.
Mr. Woodall. Dr. Spalding.
Mr. Spalding. One thing I would add to that is, look, one
of the dilemmas I think both party faces is what you alluded to
at the end: How do you carry out your responsibility when the
person in the executive office is of your same party and you
don't want to embarrass them and your constituents don't want
to either? That is a problem.
Part of the answer is--I don't mean this in the simple
sense but in the powerful sense--a rhetorical answer. As I said
earlier about establishing the will to act as an institution
and asserting your powers: Congress needs to talk that way
more. So, for instance, you could say ``I am sorry, Mr.
President, but it is not that I am against you or what you are
doing. But it is my obligation to make sure this is done
correctly and responsibly and through the proper constitutional
process.
Congress is timid when it comes to those things because we
have gotten to a point where everyone assumes that, as soon as
you draw a line, it means the nuclear option, or it is a red
line. One of the reasons why I think we want to, from a
constitutional point of view, push more and more authority back
into the legislature is precisely because the legislature is
the place where you can have deliberation and consensus and
accommodation.
I am not opposed to going to the courts, but you generally
don't like the courts in political questions because their
decisions are binary. The reason it is a problem with the
executive oftentimes is because it is a unitary decision.
Congress is the body, the branch, in which you have to figure
out how to come to some sort of accommodation on these
questions.
But you need to explain that to the other branches in a way
that defends this, despite your partisan affiliations, with or
without the executive. Not every challenge of a President is
partisan. They shouldn't be at a certain level. I am not naive
and say that we are not going to have partisan challenges, but
there are institutional challenges, and you want to be at the
point where you can do that with either a Republican or a
Democrat president, given the control of Congress being the
other way around.
And today everything you do, every motion, every little
gesture, is seen in partisan terms. Part of that, I think, is
also learning how to better explain and argue those things in
public terms, through legislation but also in terms of how you
talk about these things.
Mr. Woodall. Professor Prakash.
Mr. Prakash. I mean, I think the way I would try to explain
it to a constituent is: It is not about this President. What we
are doing is constraining the Presidency writ large, and it
applies to this President or President Sanders or President
Warren, or whoever might come down the line.
And so I think putting it that way makes it clear to people
that, since their party doesn't have a monopoly on the
Presidency, they can see the wisdom of the institutional
constraint without regard to who is President. And you can even
tell the President: It is not about you, right? Maybe this
takes effect next year, right, or 3 or 4 years from now. And it
is not as good as it taking effect now, but it certainly is
better than no reform at all. Because people don't know who is
going to be the next President or even the next President after
that, I think it is easy to say it is not about any particular
person.
Mr. Woodall. Please.
Mr.Spalding. Well, I mean, correct me if I am wrong, but I
believe if Congress votes a pay raise, it doesn't take place
until after the next election. So maybe that ought to be your
model to make it very clear it has nothing to do with the
current occupant of the White House.
Mr. Woodall. Though to be--to the point of what we are
talking about, that is exactly what the 27th Amendment says,
and yet in the middle of every congressional session, we go to
the law and we change the law that provides for that across-
the-board cost-of-living increase for Federal employees and say
this shall not apply to Congress. There is a constitutional
amendment that says you can't change pay in the middle of a
term, and yet we do it every single term. Strangely, there is
no special interest group litigating that or trying to get that
fixed.
Two quick questions, Mr. Chairman, with your indulgence.
Sunset language doesn't exist. Very often when things do
sunset, often times we don't go back and reauthorize anyway.
From an institutional perspective, creating more sunset
language strengthens us as Article I, or because of our habit
of ignoring unauthorized programs and their expiration
continues to weaken us as Article I? Is it obvious to you?
Mr. Spalding. I think you hit on a possible dilemma. On the
one hand, for a lot of things we are talking about, I actually
like sunsets. Right? I mean, you have authorized a certain
period of time, there is going to be an authorization for a
military act. Having that sunset or defining it is a great
idea. But like you said, this is an exercise in parenting. If
you sunset laws, you have to enforce the sunsets. And there are
plenty of programs that have long sunsetted, but you still
appropriate money for, and there is all sorts of contradictions
out there. So whatever you choose to do, I think one of the
things that will play to your strength is being consistent.
Mr. Woodall. Professor Prakash.
Mr. Prakash. Go ahead, Prof. Pearlstein.
Ms. Pearlstein. So, with respect to sunsets, I think they
are essential for use-of-force measures in particular and
emergency authorities in particular because the way the
legislation and authorities are currently designed, it requires
a supermajority. It is a simple majority of Congress to flip
the switch on to war or emergency authorities, but it requires
a supermajority of Congress to turn it off. And that is because
of Chadha, and you can't have a concurrent resolution. We
talked about this a little bit earlier. It is in my testimony
as well.
So there a sunset is, I think, indispensable. Beyond that,
and beyond that context, I think the way to think about sunsets
is not necessarily as does it increase or decrease power, but
about what kind of incentives it gives you to vote or not.
Sunsets are what I would call a democracy-forcing device,
right? They don't empower or disempower. They just make you
vote again if you want to take action.
So, if it is something that you think is essential for
there to be repeated democratic consultation on, a sunset is a
good thing because it will make you vote. If it is the kind of
issue that you think nobody is going to want to vote on this
ever again, then you want to be maybe more cautious about
sunsets because you will come to the requirement of voting, and
if your members, you think, are incapable of acting, for
political reasons or whatever else, and it is something that is
important, like CDC funding or whatever else, then you want to
be more cautious.
Mr. Woodall. Let me ask when the golden age of Article I
empowerment was? You don't have time today to tell me
everything that we need to do to get right, but I can go and
read the history books and see what folks were doing right. One
of my favorite quotes is that Jefferson letter to Rutledge in
1797, and he says to Mr. Rutledge: You and I have seen warm
debate and high political passions, but gentlemen of different
politics would speak to each other. It is not so now. Men who
have been intimate all their lives cross the street to avoid
meeting and turn their heads the other way, lest they should be
obliged to touch their hat.
Right? This was 10 years in, and we had already gone to
pot.
And presumptively those political passions in the Senate
bled over into Article I, exercising oversight of Article II.
So, if we had already come unglued 10 years in, when--what are
you going to point me to as that era? Right? We have got more
vetoes, I think in the few years of the Ford administration
than any other Presidential administration, as America was
reacting to executive power and a pretty high supermajority in
the legislature.
But where is the--it is so easy to say today is bad. I want
to know when it was good, and that will help me to plot a
course.
Mr. Spalding. Congressman, it was never good.
Mr. Woodall. Okay.
Mr. Spalding. I think the point of it is that, yeah, there
was never intended to be a golden age, right? The whole point
of the Constitution, the beauty of the Constitution, as seen in
the Convention, the Federalist Papers, and other contemporary
writings is a recognition that the nature of man is full of
political passions and interests, but a lot of good too. But
government's job is not to figure a lot of that out, but to
create a structure by which we can exercise the powers that
need to be exercised, be able to have an executive that can do
what we need for crises and necessity, and introduce the idea
of an independent court system. They were never so naive to
think that somehow this is a perfect system or that the actors
in it would be perfect. What they recognized, which is why I
think our obligation is to the Constitution, is precisely that
all the actors in the government are going to have some
political instincts. It is human nature. So, instead of
forgetting that and ignoring that, which is one of the reasons
why I am a little bit more nervous about political power being
exercised by people not clearly under the legislative or the
executive power is because they are political too. So instead
let's give them a political interest in their institutions and
then set the institutions against each other, through the
separation of powers and checks and balances, that then give
rise to a higher obligation to uphold the constitutional
system.
The break, in my opinion, occurs once that system starts
getting mucked around with. Over the course of time, it is hard
to identify a particular point that defines the shifts towards
this different way of thinking. But the progressive movement
introduced arguments and policies about more administration,
which fed the executive branch, and then once you centralize in
the 1960s and 1970s--again, like it or not--that created the
sheer amount of activity that I think makes it virtually
impossible for Congress to exercise its true legislative
powers. And they have, you know, gone to the method of least
resistance, and the executive now can exercise more power
because if you guys have not as much ambition, I can tell you,
executives tend to have more and more ambition. And that is the
root of our problem, I suppose.
Mr. Woodall. Dr. Spalding tells me it has never been good.
Surely someone can lift me up more than----
Mr. Spalding. It has been better, though. It has been
better, though.
Ms. Belmonte. I am afraid I would agree with that. I mean,
let's not forget that it was at this very building where
Preston Brooks beat Charles Sumner with a gutta-percha cane
senseless----
Mr. Woodall. But that hasn't happened in a number of years.
We are on the----
Ms. Belmonte. They did ban weapons in the building shortly
thereafter, so. But, no, I mean, in terms of discourse, I don't
know if we have ever had any sort of honeymoon period. It
certainly was very vicious in the 1790s as you mentioned. I do,
though, think that in the mid-1970s you had a period where
Congress was actively trying to reassert its power through
things like the creation of the Federal Election Commission,
the Freedom of Information Act. 1978 was really the last major
reform of the Civil Service, creation of the inspector general
office, and that is within a lot of us in this room's lifetime.
It seems like it is far away but really isn't.
Mr. Woodall. Professor Prakash.
Mr. Prakash. I mean, I guess there are two dimensions. One
is partisanship, and one is congressional power. And in ages
past, of course, Congress had more power than it does now, even
if those were rather partisan times. And so I think if you
can't have both bipartisanship and power, at least have the
power. And so I think it is a mistake to say that Congress has
always been irrelevant or been a plaything of, you know, just a
tagalong for the executive. That is just not true. There were
very powerful committee chairs and Speakers that basically
decided Federal policy in any number of ways. I believe this
was true for most of our Nation's history, in fact. So there
was golden age, where power was was centered in this building
for centuries.
Mr. Woodall. Well, that being the case, and we are pointing
to the mid-1970s as a resurgence in congressional power, when
is the failure? Are you coming to the Carter years? Because
that is going to hurt me as a Georgian if that is where the
blame lies. If we can point to the 1970s as a resurgence and it
used to be strong, when does the weakness begin in your view?
Mr. Prakash. I mean, I think it is gradual. I don't think
it is any one decision? I think if you keep on delegating
authority to the executive, it will naturally feel like it is
the one who is tasked with making the laws. And then when you
pass particular restrictions, it will then think it has
discretion to reinterpret them. Right? So, even when you pass
specific laws, it finds discretion where none was meant to be
conveyed. And so I don't think--I wouldn't blame any particular
President. I think they are all doing this, and they have
incentives to do it. I don't think they are evil. I think they
are running on a platform, and I think they want to implement
it, and we can disagree with the platform or not, but I think
they are just responding to the incentives they face. And I
just don't think it is any one person. I think it is a mistake
to personalize and say this or that President was the cause of
all our problems.
Mr. Woodall. Professor Pearlstein.
Ms. Pearlstein. Yeah. So I guess pivoting off of that
slightly, the partisanship and the power are really closely
related. They are directly tied. What happened in the 1970s was
a major effort in Congress to reassert power, coming off the
Watergate years and Vietnam and so forth. But the 1970s is
where the partisanship line, where the polarization line
switches. So, if you look at the political science and they
graph the sort of number of effectively party-line votes in
Congress, what happens is, beginning in the 1970s, the line
starts going like this. Right? Polarization starts going like
this in the 1970s. And why is it that that happened? Beyond our
pay grade here probably to describe those trends in society,
but it is not that the scope of delegations changed in the
1970s. We were well into the administrative state by then.
What changed in the 1970s is the partisanship, and the
partisanship affects the power because it makes it harder for
you to legislate. It makes it harder for you to act. And as
Congress has become increasing divided, it makes it--you know,
along party lines, closely divided, it makes it harder and
harder for you to act. So it is not possible to divorce the
partisanship from the power.
What is possible, at best, right, is for Congress to act in
ways that try to diffuse rather than exacerbate the
partisanship that exists.
Now, some of those are outside things, and they might have
to do with campaign financing, and they might have to do with,
say, amending the Communications Decency Act or sort of start
to think more strategically about social media in a way that
respects the First Amendment but that still tries to minimize
the polarizing effect of that. And part of that is, as we were
talking about earlier, creating spaces within Congress. Once a
week have a bipartisan lunch and bring in an outside speaker to
give a little history lesson or a little instruction on how
Facebook works or--take your pick. But right--the second Member
of Congress--I have heard two Members of Congress in the last 6
days, say: Gosh, you know, I never see Members of the other
party. We don't meet for lunch. We don't--you know, I've got to
be back in my district, raising money. I have got to be at
committee meetings. I have got to be whatever else.
That is an extraordinary state of affairs as a workspace
for you, and it seems to me like that is a modest initial step
that might begin to help Congress at least not exacerbate the
partisanship that exists.
Mr. Woodall. Mr. Chairman, I want to accept Professor
Prakash's invitation that if we can't defeat the partisanship,
let's at least take back the power. I hope that we are able to
work on that. I trust you with that power. I yield back.
The Chairman. No, and I appreciate that, and I think that
is--go ahead.
Mr. Spalding. I just want to----
The Chairman. Yeah.
Mr. Spalding. It is interesting that the partisanship came
in the 1970s. I would agree with Sai's point about how there
was--even though I don't think there was a golden age--there
was this point at which Congress' powers were stronger relative
to the way they are today, absolutely. There is an intellectual
shift that begins in the early 20th century, and there is a new
theory of governing about administration.
There are things that occur along the way, but the fact
that a big shift occurs in the 1960s and especially in the
1970s, I think, is significant, and it is not merely a random
rise in partisanship. It is, for the first time, you now have
in place a fuller administrative state,--and for the first
time, in the Nixon administration, there is a recognition that
control of the administrative state is a dispute between the
executive branch and the legislative branch.
And so from the 1970s forward, we have a situation where
this administrative state mostly has been centralized in
Washington; and, lo and behold, the partisanship is actually
when you have an executive trying to assert their control over
it and the other party in Congress not liking that, and trying
to fight back. So now we have a partisan divide. I mean, in
certain instances, that is what is happening today. We fought a
similar battle in the 1980s. There are these back-and-forths
that underscore the point that a lot of politics today actually
turns on the administrative state. We have created this
situation where it is in the interest of the executive to fight
for the control of the bureaucratic system Congress has
created. Congress needs to pull that back in order to restore
institutional balance.
It has been partisanized to some extent, and that is
unfortunate, but it is a serious battle with serious
constitutional implications that is not mere partisanship. It
is a serious constitutional argument going on as to, where do
these aspects of the modern state rely? Who has the property
authority over them? How are they going to exercise that
authority, consistent with the broad parameters of
constitutional government?
Mr. Woodall. Thank you, Mr. Chairman.
The Chairman. I yield to our constitutional expert, Mr.
Raskin.
Mr. Raskin. Mr. Chairman, thank you, and I want to thank
Mr. Cole as well for your vision in bringing us together in
this hearing, and it is indeed refreshing and exciting for us
not to be here in the unusual partisan camps of 9-4 but 13 to
zero on the side of the constitutional order and Congress and
the people that we represent.
When I read through everybody's testimony, I find that
there is at least one overarching value and principle that has
been vindicated by the presentations today. And I think about
it sometimes when--whenever the President, any President,
violates constitutional boundaries or rights, and a Member of
Congress will get up and say, ``Mr. President, please stop
treating us like this; we are a coequal branch of government,''
beseeching the President to be good to us. And what I take from
everything you are saying is that we are not a coequal branch
of government.
First of all, ``coequal'' is not even a word. Okay. That is
like ``extremely unique'' or something like that. We are not an
equal branch of government. We are the people's branch of
government. We are the representative branch of government. We
are the lawmaking branch of government, under a constitutional
Republican framework.
And the Preamble of the Constitution, it is that one
action-packed sentence that gives us all of the purposes of
government: We, the people, in order to form a more perfect
union, establish justice, ensure domestic tranquility, provide
for the common defense, promote the general welfare, and
preserve to ourselves and our posterity the blessings of
liberty, do hereby ordain and establish the Constitution of the
United States.
And then--that is all in one sentence--and the very next
sentence is Article I, stating that all legislative power is
vested in the Congress of the United States, the Senate and the
House, meaning that the sovereign power of the people to create
the Constitution, to launch the Nation, to design the
government, flows immediately to Congress.
And then you get 37 or 38 paragraphs spelling out all the
powers of Congress as you have discussed them: the power to
regulate commerce internationally and domestically, the power
to declare war, the power to set up a post office, the power to
exercise exclusive legislation over the seat of government, the
power over piracy, and on and on and on, and in Article I,
section 8, clause 18, and all other powers necessary and proper
to the execution of the foregoing powers.
And then, after all of that, you get to Article II, which
reposes the executive power in the President. And there are
just four short sections, and the fourth section is all about
impeachment and how you can impeach a President for committing
treason, bribery, or other high crimes and misdemeanors.
And then the rest of it is essentially saying that the
President is the Commander in Chief of the Army and the Navy
and the State militias when called up in times of actual
insurrection and conflict. And what is the President's core
job? To take care that the laws are faithfully executed, to
implement and execute the laws that have been adopted by the
people's Representatives.
So I want to thank you for restoring that essential
constitutional vision, which has been so lost over the decades.
Whether you trace it to the rise of an administrative state, as
Professor Spalding does--and I definitely want to ask him about
that thesis--or I think another rival and perhaps, to my mind,
a more compelling proposition, which is the rise of a national
security state in the wake of World War II and the development
of a massive military apparatus underneath Presidential power
and control.
But I wanted to say a word about something that Mr. Cole
said, because I think that he is right, and I think he was
picking up on one of Dr. Spalding's points about Madison
Federalist 10, about how the design of competing and
counteracting ambitions requires those of us who aspire and
attain a public office to identify our own political ambitions
with those of our institutions and to fight for our
institutions and the institutional interests and principles
that emerge. And when that happens, that really is kind of a
beautiful thing to behold.
I remember when I was reading Robert Caro's book about
Lyndon Johnson, of course, who was a famously great and
effective Senate majority leader, but when he got elected Vice
President, he had the idea that he would be not only Vice
President, but he would stay on as Senate majority leader
because he said: Hey, I am the President of the Senate under
the Constitution, and I should just stay the head of the
Democratic Caucus.
And he expected that these Senators, who usually yielded to
his will, would just go along with it, but when he went into
the room to announce that this was his intention, there was an
absolute insurrection because all of the Democratic Senators
said: You now belong to the other branch of government, and we
have to stand up for the legislative branch and for the Senate.
That is who we identify with.
I think, more recently, we have seen it a couple of times.
We saw bipartisan majorities in both the House and the Senate
stand up during the Obama administration for the legislation
that would make Saudi Arabia liable for lawsuits by our
constituents relating to 9/11 over the President's veto. And we
were not distracted by the partisanship of the matter.
Just like, more recently, under the leadership of, you
know, our chair and the ranking member, I think we have also
stood up for the war powers of Congress with respect to Iran.
We also did it with respect to Yemen. And so there are times
when we exercise that political, institutional muscle memory,
and we are willing to stand up for the powers that have been
reposed to us by the Founders of the Constitution.
But I want to ask a couple questions, and one is about the
courts. Is there anybody here--I mean, this could even be yes
or no--is there anybody who thinks that the courts can save us
here, or has any interest in saving us here? You know, I see a
Supreme Court that has been increasingly filled with people who
have made their careers as executive branch lawyers advancing a
strong executive view of the Constitution, and that view has
come to sway a lot of the Supreme Court decisions. And I am not
seeing that the Supreme Court has been in any mood to rein in
executive power. So I just want to know, is there anybody out
there who thinks the courts can save us? And you can answer
with your silence or--Professor Prakash.
Mr. Prakash. I mean, I think your general sense is right. I
don't think the courts can be counted upon to save you or, put
another way, sort of do the work that you should be doing for
yourselves. I think the only Justice who has had any
legislative branch experience, off the top of my head, is
Breyer. I think he worked for Senator Kennedy for a while; I
don't know how long. But I think you are right, that if
Senators paid attention to this, we could have more Justices
who actually have served in legislatures or served in Congress,
which wasn't uncommon in the past.
And so, you know, I think that is certainly possible that
you could ask Presidents to think more about appointing Members
of Congress or former Members to the courts.
Mr. Raskin. Great.
Yes.
Ms. Pearlstein. My own view is, the courts should be more
aggressive in checking executive power, but not even Justice
Jackson thought the courts could preserve for Congress power
that Congress didn't assert for itself. So----
Mr. Raskin. So the bottom line is we have got to do it
ourselves.
Ms. Pearlstein. Yes.
Mr. Raskin. In other words, we have to exercise the powers
of legislative self-help in order to defend the proper powers
and prerogatives of Congress.
So, let's see, Dr. Spalding, I wanted to come to you. I
agreed with almost everything you said, but I detected a
sneaking attack on the administrative state, and I certainly
heard the same thing from Steve Bannon when he came into
office. I think he declared his overarching purpose was to
deconstruct, I think was the word, the administrative state.
And forgive me or my parochialism here, but I represent
Maryland's Eighth District, which is right near Washington,
D.C., and I represent tens of thousands of people who work in
what people are slurring today as the so-called administrative
state. They work at the Department of Agriculture. They work at
NOAA, which is in my district. They work at the NIH, trying to
fight and research the killer diseases. They work at the Center
for Disease Control, trying to prevent the viruses and bacteria
that are coming to get us. I am sorry, but I don't think that
the 435 or the 535 Members of Congress can do all of that stuff
ourselves. I think that it is completely within the legislative
prerogative to set up these agencies, which will be under the
executive branch of government, to go out and to implement of
will of the people in a very complicated, modern society. And
that doesn't mean that we have to give away our overarching
legislative power and legislative supremacy within the system.
Now, I am totally with you, if we write our laws in such a
way that there is a very broad and overly vague or standardless
delegation to the executive branch, that should be struck down
under the nondelegation doctrine. We should make sure that we
are delegating laws with specific enough direction that rules
can be developed. But is the administrative state itself really
a problem? And I thought I would give you at least a second to
say something, and then maybe I could ask one of your
colleagues to answer. Is the administrative state the heart of
the problem, or is the problem that we do have executive
usurpation and legislative surrender of powers that properly
belong with the representatives of the people?
Mr. Spalding. Well, just, you know on your last point,
those two things aren't necessarily incompatible. And so I
agree with your last point. But in general, I think the
administrative state is a problem, but let me clarify what I
mean by that. I know it has become a popular term and
politicized in a certain way, which I don't completely agree
with, the notions of--whether it is deep state or whatever
these terms are. I mean it in a more straightforward and simple
sense, and I am just raising the general observation that, by
its original plans, Woodrow Wilson and Teddy Roosevelt and
people in both political parties were figuring out how to do
more and more things through a kind of bureaucratic expertise
outside of the political control of Congress. That was their
very intention to a large extent.
And here we have gotten to a point where a lot of the
things that your constituents normally think of as laws are not
responsive to consent in the way they assumed for a long time,
either through regular congressional elections or somehow
through the executive. I think that is, at the level of
principle, quite problematic.
Having said that, Congress actually does a lot of things
and regulates a lot of things, and it has to, by the necessity
of government. So I am not denying that it is extremes one way
or the other. If we are thinking about the discussion here, it
is problematic because there is now this huge array of
government that Congress is trying to figure out how to,
through its lawmaking power and oversight, how to keep an eye
on. There is a lot of it. It is very complicated. It is a hard
thing to do. And by virtue of that fact, you have a lot of it
that now is occurring under the executive, who has more and
more authority to shape a lot of those decisions through
political appointees and other processes. I think if we are
thinking about how to revive a robust separation of powers in a
way that is ultimately politically responsible through consent,
which is really the objective I think we all share in common,
it is something I am comfortable with, but I am not saying that
we want to go back 200 years and have that government--that is
not going to happen, and that is not the objective. It would be
imprudent to do that. But I think that we are beyond the point
where Congress needs to really think hard about how to, when
you create something, maintain control of it. It should be
responsible. It should be responsible back to you. And if there
are things going on in the bureaucratic state that you don't
like or you want to check, you should be able to call those
things back and to check them.
And I think that the less you do that, the more the
executive will. Hence we have the situation which we find
ourselves. And that is not to say there are other factors here
as well. It is just--looking at it from my historical point of
view, that seems to be a major factor here that tracks very
nicely historically with the rise of the problem we are looking
at.
Mr. Raskin. All right. Good. And Let me----
The Chairman. Mr. Raskin, will you just yield to me 1
second?
Mr. Raskin. Yeah.
The Chairman. Yeah, I just want to, I have to excuse myself
to go to the floor. I have a bill on the floor, but I am going
to turn the gavel over to Mr. Cole. I didn't want anyone to
have a breakdown on our side, but I mean, this hearing again is
a----
Mr. Cole. It is like you are dad giving the keys to the
car----
The Chairman. Yeah.
Mr. Morelle. Should we appeal the ruling of the chair?
Mr. Cole. I think you got the votes.
Mr. Raskin. All right. As I said, two final questions.
Professor Prakash, let me ask you, one of the other themes that
has emerged strongly here is that Congress has the power to
declare war, but it also has a duty to declare war, that is, we
can't abdicate that or surrender that just because it is a
politically difficult position for us. And I wonder if you
would just generalize that proposition in terms of all
legislative action here.
Mr. Prakash. I think so, Congressman Raskin. I think this
goes back to what Congressman Woodall was saying. I think the
Constitution gives you authority, and you are supposed to
exercise it. And that is true for war powers. I would say it is
equally true for the other things that are granted to Congress,
the regular legislative powers. And I--you are quite right that
you don't have the expertise that agencies have, but--I mean, I
think you can harness their expertise without fully delegating
your legislative powers to them, as has happened.
And I think it is sort of interesting and emblematic that
the President last year or the year before, said: We are going
to dismantle ObamaCare administratively.
And I think that is an incredible statement to make. But it
is actually possible that the statute does give him so much
discretion that he can do that. And I think that is a
consequence of a habit of just saying: Look, we in Congress do
the broad outlines; you, the executive, do the details.
But that has consequences for how the executive branch
perceives itself. And, of course, it is then impossible--it is
virtually impossible for you to change that statute.
Mr. Raskin. Okay. And my final question--and perhaps
Professor Pearlstein and Dean Belmonte, you would address
this--one of the reasons why the executive branch, I think, has
grown in power, vis-a-vis Congress, is the executive branch has
one person at the top of it, and that person can speak for the
entire executive branch, and it communicates a sense of
authority and command that you don't get from 535.
I mean, when I read the Founders, I think one of the things
they loved about Congress was that people would come and they
would debate and fight and talk, and yet it is very easy to run
against an institution that just talks, that is just debating
and deliberating. And all of those trends have been pronounced
and exacerbated by the rise of modern technology, TV, internet,
Twitter, and so on and so forth.
So I just wonder if you would reflect on, symbolically, and
in terms of communication, how to rectify the imbalance between
the branches that has grown.
Ms. Pearlstein. You want to?
Ms. Belmonte. You can go.
Ms. Pearlstein. Okay. That is a great and interesting
question to which I am not sure I have a very good answer.
Theodore Lowi, a former professor of mine at Cornell, wrote
about the personal Presidency, right, decades ago. And you can
date it back to Teddy Roosevelt, right? So this is a radical
change. One of the things that has been most interesting to
see--and forgive me for mentioning the current Presidency for a
moment, right--this is the first tweeting President. And I
think that is factually accurate. And that of itself, right,
empowers the executive dramatically as compared to any Member
of Congress or even more.
There is--Congress has to be enormously cautious when it
begins to think about regulating those privately owned
platforms, but those privately owned platforms--Twitter and
Facebook and Instagram and the whole pile of them--exercise an
enormously concentrated degree of power that historically the
United States has been uncomfortable in allowing to be held by
any one body. Right? We don't--we separated powers in the
Federal Government. We separated powers between the Federal
Government and the States. We have antitrust laws that prevent
the accumulation of powers in private industries, and we are at
a moment when, in part because we don't understand this
industry very well and we are still trying to follow it, where
it is effectively further changing the balance of power even
among the branches of government.
It is something that Congress has a duty to at least begin
to get a grip on or understand and then to think creatively
with members of private industry and academia and so forth, how
we might begin to more effectively incorporate those kinds of
institutions into our political life?
Ms. Belmonte. I think that we have had a real evolution of
how Presidents communicate with the public. You know, one could
make the case that Twitter is the fireside chat of 2020. Some
of the things that I think Congress could do--Professor
Pearlstein mentioned the antitrust laws. I think there
certainly is a case to be made that some of these companies now
wield a tremendous amount of power. I think there are, like,
six major companies that control most of the newspapers in the
United States now. Possibly consideration of the reinstitution
of the fairness doctrine might help right this picture a bit.
I also think that there are some things we can do to
empower the people in the National Archives system who are
working for records retention and openness, bolstering the
staff of the people who implement the Freedom of Information
Act. The National Archives in particular has really had its
budget gutted, and with the flood of FOIA requests, people who
could be doing things that are more productive than fielding
these requests.
Mr. Raskin. Yield back.
Mr. Cole [presiding]. Will the gentleman yield to me for
just a moment?
Mr. Raskin. By all means.
Mr. Cole. Thank you very much.
I just want to follow up on a point that you made,
Professor Pearlstein.
We recently were at a Republican retreat, and somebody
said: If you want to see who has got the louder voice, let's
add up all of what you guys have on Twitter, literally every
single Republican Member, and what the President has. It was a
10-to-1 differential. So, in terms of megaphone, really makes
your point.
With that, the gentleman----
Mr. Raskin. And I yield back to you, Mr. Chair.
Mr. Cole. Thank you very much.
I yield to my good friend, the gentlelady from Arizona,
Mrs. Lesko.
Mrs. Lesko. Thank you, Mr. Chairman. First, before I
forget, I would like to ask unanimous consent to insert into
the record a report for a practical vision on government
efficiency, accountability, and reform that the Republican
Study Committee, of which I am a member, produced. It offers
over a hundred solutions, many of which include reasserting
Congress' proper role in regulatory reform.
Mr. Cole. Without objection.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mrs. Lesko. Thank you. I think this has been an interesting
discussion. We will see if anything comes of it. One of the
things--I have a question for Mr. Spalding. I think one of the
things that I heard going in and out between different
committee hearings that I am in is that there is a suggestion
to beef up the staff, and so have kind of a nonpartisan
alternative to the Office of Legal Counsel in the Congress. And
what are your thoughts on that, Mr. Spalding?
Mr. Spalding. Well, I was speaking in general terms, first,
which is that I think that Congress shouldn't unilaterally
disarm in the kind of back-and-forth with the executive branch
or the judiciary for that matter. It should have the strength
it needs to do its work. Beyond that, it is a prudential
question as to what exactly you need. You created the
Congressional Budget Office. You will know what is it that
would help you best fight those battles. I think that is just a
practical question.
In terms of having some sort of Office of Legal Counsel, I
don't see that necessarily as a problem. Why wouldn't you? I
was going to tell Mr. Raskin I am going to blatantly use his
wonderful phrase ``legislative self-help''--I like that by the
way; that is great--but I am not in agreement overall. Congress
is the first branch, first among equals, but each branch has a
separate vesting and must take that vesting seriously, and so
it needs to have the tools to carry out its responsibility. If
Congress deems that it has need of these things for that
purpose, I think that is a perfectly legitimate reason to do
so.
Mrs. Lesko. And I would like you to expand--I know the
power of the purse is probably our biggest leverage that we
have, dealing with the executive branch. And this was a case--I
was in the Arizona State legislature for 9 years. This same
struggle happens between Governor and legislative branch. You
know, the Governor wants to take all the power. The legislative
branch, you know, usually gives it to him.
And so you had brought up something about--could you expand
more on the budget subcommittees and maybe, if I heard it
right, changing them up so they are not really in line with the
Presidential budget but some kind of strategic----
Mr. Spalding. I was just making a general point. And my
guess is you guys know all the stuff better than I do. I am not
a budget expert. But I am looking at it from a political point
of view. And I think it is the case that the control of the
budget in the modern era determines the control of government.
And that power has shifted a lot to the executive branch. This
is one reason why you might need more people to help you do
that.
But, also, then you start thinking practically about, how
should Congress exert its power? And I have told this to
previous Congresses as well. You know, the Congress waits and
waits and waits, and you get into these omnibus situations.
And, lo and behold, those almost inevitably get won by the
Executive, right?
Your power is actually doing the old-fashioned work of
committee work and budgeting and authorizations and the back-
and-forth. Because if you do that, number one, it is more
likely you are going to have a pretty strong agreement about
where you are in the budget and the particulars. And there is
no reason why you can't pass them in--why do you have to pass
them in a particular order? You could break them up into
different pieces. You could pass 100 little budgets, as far as
I can tell, right?
My point is, you should think strategically about what is
the best way to do budgeting not merely as a budgeting exercise
but as a political exercise, in terms of how do you best exert
your constitutional powers as an institution vis-a-vis the
Executive. And I think it is your strongest power, on the one
hand, and you should go to your strength.
But, number two, you should think creatively about how to
use that power. And I think there are a lot of ways. That was
just an example, and I could be wrong about it, but that is an
example. You should think strategically about how to exert that
power that gives you more leverage so, when it does come down
later in the budget process, you are not caught in a position
where they are going to win. You have already done the things
and you have under your belt the things you want to get, right?
Just think strategically. That is my point.
Mrs. Lesko. Well, thank you.
And I yield back.
Mr. Cole. Before we go to the gentlelady from Pennsylvania,
just quickly, as a reminder to everybody, we are supposed to
vote around 1:30, so just wanted you to be aware of that.
The gentlelady from Pennsylvania, Ms. Scanlon.
Ms. Scanlon. Okay. Thank you.
I want to thank the chair and ranking member for arranging
this. It is a really interesting, as you have noted, bipartisan
hearing to address something that Congress appears to have
allowed to happen on a bipartisan basis over many, many years.
I wanted to focus a little bit on the National Emergencies
Act. We actually had a similar hearing in Judiciary about a
year ago which also involved high-level constitutional
discussions on a very bipartisan basis.
The Congressional Research Service tells us that, since
that act was passed in the 1970s, 56 national emergencies have
been declared by 7 different Presidents and that 60 percent of
them are still in effect.
So a couple of you mentioned some possible fixes there, and
I wanted to look at them.
Professor Pearlstein, I think you talked in your remarks a
little bit about maybe narrowing the delegation of power. Can
you speak to that a bit?
Ms. Pearlstein. Sure. And thank you. And, in fact, I think
there are a number of bills that are in the drafting stage that
might effectively amend the National Emergencies Act. Let me
mention three ways. First, the way--or three potential
approaches you might take.
The first is narrowing or, indeed, defining at all what an
emergency is, which the current tact doesn't do. And you can
come up with some definition of ``emergency'' that doesn't
unduly constrain the Executive, right? The point of emergencies
is to have some more flexibility than the Executive might
otherwise have to respond to contingencies that are
unanticipated.
But, at the same time, countries around the world have
adopted, either in their constitutions or as statutory
authorities, emergency provisions that say things like, this
has to be something that, for example, threatens the life or
the economy of the nation, or this has to be something that is
reasonably anticipated to be a limited duration, right? This is
not an ordinary tool of, say, economic sanctions or the way we
conduct foreign policy every day, right?
So actually defining ``emergency'' I think might be a
useful first step.
I think it is critical to flip the switch of authorization,
by which I mean: Currently it takes, in effect, a supermajority
of Congress to terminate any emergency, because it has to be a
joint resolution, right? I think emergencies should terminate
automatically after a certain period of time unless Congress
acts affirmatively by a simple majority vote to reauthorize
them, and, again, for a certain limited period of time, I
think, is essential.
One other point I will just mention here--and I think I
might have mentioned others in my testimony, but I am happy to
talk about it further. There is no current provision in the
National Emergencies Act legislation that requires--so, once
the President declares an emergency, it triggers access to 130-
something different statutory authorities that might be used.
There is no current provision in the National Emergencies Act
authority that says, you may only use those statutory
authorities that are relevant to solving the emergency that you
have identified, right?
So we could, under the existing statutory scheme, be in a
situation in which the President declares--or, actually, the
health emergencies work differently, but just to use the
coronavirus example--in which an emergency, a public health
emergency, is declared, and for that reason we take additional
funds to do military construction on the border, right?
So I don't mean to be partisan; I am choosing these
examples from current history. But the point is the President
doesn't need every emergency authority in every emergency. And
it is entirely possible to draft the statute through minor
amendment that would make the President only able to use those
statutory authorities that the President determines are
necessary to address the emergency as identified.
Ms. Scanlon. Okay.
Professor Prakash, I think in your comments you talked
about maybe a 6-week sunset provision. Can you speak to that a
little bit?
Mr. Prakash. Well, I mean, I agree with much of what
Professor Pearlstein has said. I think a definition of
``emergency'' would be good in statutes. But I think the
timeframe is crucial, right? Because it is sort of embarrassing
that Presidents are basically saying we have been in a state of
emergency for 60 years, because it just sort of drains the word
of any meaning.
So I think saying that sometimes when Congress is not in
session, the executive needs to act to handle crises. Fine. The
emergency the executive has declared and the authorities it is
exercising will expire 6 weeks after Congress returns or 3
weeks after Congress returns.
The Constitution itself has such a provision. It deals with
recess appointments. It is supposed to end at the end of the
next session of the Senate.
I don't think you need to give the President a yearlong
emergency. I think a couple of weeks should be sufficient. And
then Members of Congress can just decide, is this really an
emergency? Or even if it is not, do we agree with the policy
such that we want to implement it statutorily?
Ms. Scanlon. Okay.
I was struck by, both in your conversations and in the
comments you submitted, the number of recommendations that
overlap with the other committee that I serve on with
Representative Woodall, the Select Committee to Modernize
Congress, where we have talked quite a bit about ways in which
we can develop more room for discussion, for legislating, for
bipartisan discussions. And these include calendar adjustments
to increase the time in D.C., longer workweeks, restoration of
earmarks, and staff resources.
I think, Dr. Prakash, you had talked about Congress needing
to bulk up on its staffing.
Would any of you care to address that?
Ms. Pearlstein. I completely share the recommendation that
Congress is understaffed, significantly understaffed. And so,
both within individual offices and as an institution, Congress
has the capacity to create--Congress has the power to create
all kinds of additional capacity that it needs.
What happens sometimes now is that Members of Congress and
offices that are short-staffed or require expertise pull from
different agencies of the executive branch, who have wonderful
experts in them, but it should be possible for Congress to
maintain and pay the kind of expert staff that it needs right
here in-house.
Ms. Scanlon. Yeah. I think that has been, kind of, one of
the frustrations as a new Member. I think I disagree a little
bit--and maybe it is because two out of the three committees I
serve on are aggressively bipartisan--about not having the
opportunity to speak with or break bread with other Members
that frequently. But the pace of our time in D.C., with kind of
a very compressed 4-day schedule where Members have to step in
and out just to get to the hearings and such, I think is
problematic, and I am hoping that we can make some movement in
terms of the calendar system here.
And, with that, I would yield back.
The Chairman [presiding]. Thank you.
Mr. Morelle.
Mr. Morelle. Thank you.
First of all, I just want to comment on how much I
appreciate this forum. I appreciate all of you being here and
your thoughtful testimony, which I had the chance to, like Mr.
Cole, spend time over the weekend reviewing.
I also want to thank the chair and ranking member, who I
think have done just a great service not only to us on the
committee but to the country by having this discussion.
I, like my colleagues Ms. Scanlon and Secretary Shalala,
are new to the Congress. I served in the State legislature in
New York for more than two decades. So trying to get acclimated
to the Congress and how we work.
But as I was thinking about this over the weekend, I had,
sort of, three things, I think, generally that came to mind.
The first was how to restore the balance that the Founders
intended, which is what all of your testimony was about and the
background material.
And I want to also thank the staff, because I think they
did just a terrific job in pulling materials together, and the
Congressional Research Service. So thank you for that.
But how to restore that balance. And spent a fair amount of
time reading through the material and sort of thinking about
it, recalling times we all read through ``The Federalist
Papers'' in college.
The second was if--the question of restoring the balance is
obviously a critical one, the point here. But then, also,
secondarily, does what the Framers intended, does that still
work in the modern world? So is that balance possible to
restore, and then is that the right form of government in a
modern world?
And I think about it under, sort of, two, sort of, general
ideas. One is feasibility, with the issues that we have to deal
with now, you know, how quickly things develop, and you compare
that to the 18th century, where things moved at a relatively
modest pace compared to today.
So, today, within just a few weeks, we are talking about a
virus that a month ago few Americans had paid any attention to,
and now it is dominating just about every news cycle, and
obviously there is concern about how quickly we react to it.
We talked at length today about military action and, again,
just the ability to be able to engage in military action
compared to just two centuries ago and the complete difference
in the ability to reach enemies, and now with air power and
missiles, et cetera, it is momentary rather than taking weeks,
if not months, to sort of engage.
And I think about even feasibility. Our appropriations
process, which I had the privilege of, now, I guess, working
through two, but the last one, we finished our appropriations
process in December for a fiscal year that starts October 1.
So, I mean, our ability to, sort of, come together and deal
with it. So that is one thing.
The second was--and I think Mr. Cole and Mr. Raskin touched
on this, in particular--sort of, the practicality. Given where
the media is--and I don't mean just the traditional media--
social media, just the ability now for people to share
information and to hold us accountable in ways that, frankly,
we never have been held accountable.
I go into meetings in my office in the Federal building, a
meeting with constituents, and they will say, why aren't you a
cosponsor of this bill, which I have never even heard of. And
it is almost as though it is weaponized now if you don't know
every--I don't know how many thousands of bills are introduced.
But it is amazing, the degree to which people not just hold you
accountable in, sort of, broad-brush, you know, themes about
your philosophy of government but in very pointed ways about
the issues that they care about. And if you haven't sponsored
or cosponsored a bill, if you haven't signed on to a letter,
honestly the volume that comes at us--and I don't know that I
am any different--I am sure the senior Members get much more
attention, but it makes it nearly impossible to manage all of
that.
So I wonder about the practicality of some of the things
that we have talked about.
And then I think the final thought that occurred to me
was--I was reminded of, I think it was Walt Kelly, who was an
old cartoonist, who modified an old phrase, that ``we have met
the enemy, and he is us,'' which is, Congress can act. I mean,
we talk about a lot of ways of, sort of, forcing us to do what
is our job under Article I.
And so I do think about that. I mean, it is almost like we
are creating a Rube Goldberg sort of machine to get us to do
what is our constitutional authority and which we have the
ability to do.
I did note, in looking at this--I was trying to remember an
old Thomas Jefferson letter, which my staff put their hands
on--thankful to them--that he wrote to James Madison. He was in
Paris at the time--wrote in September of 1789.
He said, ``On similar ground, it may be proved that no
society can make a perpetual constitution or even a perpetual
law.'' And he sort of gets into the conversation, with himself,
of the question of repeal versus what we would call today a
sunset provision.
He said, ``Every constitution, then, and every law
naturally expires at the end of 19 years.'' Don't ask me where
he came up with 19 years. It is sort of an interesting--I guess
that is a generation in that era.
And then he sort of concludes with, ``A law of limited
duration is much more manageable than one which needs repeal.''
And his argument being you would have to have a majority and
you would have to have a President to sign a repeal or to agree
to a change. Better to have a sunset.
And so I think some of what we talk about sort of falls
along the lines that many people have opined on here, that
sunsets may be the best way to sort of address this, because it
is so much more, I think--it is just so much easier for us to
periodically--and I don't know whether, depending on the bill
and depending on what we are dealing with, whether that is
every 5 years, every 10 years, or even lesser timeframes.
I did want to ask you a question that I don't know that
anybody has asked. And I had to step out, so it may have gotten
covered. Since I am not burdened by a legal education, I don't
know the answer to all the questions I ask. I know lawyers are
supposed to know the answer, but I don't know the answer to
this.
But I am just sort of curious about Executive orders and
whether or not in any--if any of the panelists wanted to just
make any observations about the proper role of the Executive
order and whether in the modern era they have now begun to
expand into what are sort of legislative prerogatives and
whether or not we ought to be doing anything from a statutory
point of view in terms of putting limitations on Executive
orders.
Any thoughts on that?
Mr. Prakash. I think it is a wonderful question,
Congressman.
I tell my class that it is not the vehicle that matters, it
is what is said in the order. Because you can call it something
else and, you know, do the same thing. An Executive order is
legal or not depending on whether the President has
constitutional or statutory authority. And so those are the
underlying questions that really matter.
I think Presidents have issued directives, they have a
bunch of documents, and they used to issue proclamations. They
don't have them as much anymore. But I don't think focusing on
the form matters. I think it is more helpful to think about
whether they have authority to lay down whatever rules are
found in the order, directive, etc?
And whether they do it or the agency does it, that is not
the ultimate question. Because sometimes Presidents tell the
agencies what to do, and then the agency does it, but it is
really a Presidential initiative. It is not coming from the
agency.
Mr. Morelle. So--yeah. Go ahead. Thank you. I am sorry.
Ms. Pearlstein. So the most important thing that Congress
can do with respect to Executive orders that it doesn't like or
doesn't agree with is override them by legislation, right? It
is the simplest fix in the world, the simplest----
Mr. Morelle. Well----
Ms. Pearlstein [continuing]. Constitutional fix in the
world.
Mr. Morelle. Well, I guess what I was curious is whether
you observed that there has been an expansion not only with the
use of Executive orders but whether Executive orders are
becoming bulkier and starting to really press into us.
And I acknowledge that the Congress could always repeal,
but I assume you would have to do it by statute and you would
have to require the signature of the President who had signed
the Executive order in the first place.
Ms. Pearlstein. That is true, right, so it becomes
difficult. And there are also ways--and the way it usually
works these days is that they are challenged in court, right?
And the courts move faster than Congress tends to move on these
things. But----
Mr. Morelle. Potentially.
Ms. Pearlstein. Yeah. Right. So, in many circumstances with
respect to, sort of, long-term Executive orders.
But I don't know--and I am sure there is political science
on this, and I don't know--Executive orders have been with us
for a long time. We may get them more frequently now than we
used to, but we have had very broad Executive orders, and they
were indispensably important in the mid- and early 20th century
as well, certainly surrounding the wars that we fought. So
Executive orders have been around for a long time. It is that
Congress acts----
Mr. Morelle. Yeah. I think President Washington----
Ms. Pearlstein. It is not necessarily that the Executive is
acting so much more through Executive order or something. It is
that Congress is acting less.
Mr. Morelle. Any other observations?
Ms. Belmonte. I would echo that. I think that the sheer
volume of them has vacillated over time, but I think in the
current legislative landscape they are being used in the
absence of legislation to address some very contentious issues.
Probably the best example of late would be immigration. We
haven't had substantive national immigration legislation since
1986. And LGBT rights is another area.
And by doing a lot of this through Executive order, it is
putting the courts in the place of trying to interpret how to
implement these orders and trying to guess what Congress'
intent might have been had it acted, but not having the
legislation to have a clear affirmation of that.
Mr. Morelle. Yeah.
Mr. Spalding. I actually find myself--I agree with
everything that has been said here. I think you are going to
get the increase in the amount of Executive orders when the
Executive has more things over which they are responsible. And
they use this mechanism, whether it is an order or some other
declaration, to give instruction to those who are going to
execute the law. That is, they are actually carrying out their
obligations to do so.
But to the extent that there are discrepancies or things
that need to be interpreted or areas where there is some
discretion, right, they can use those mechanisms as ways to
shape the meaning of the law, at the very least, if not do
something contrary to what Congress wants if Congress fails to
act.
So I don't think they are necessarily a new and different
problem in and of themselves. I think they are really part and
parcel of everything we have been discussing here.
Mr. Morelle. Yeah.
And I won't go on much longer. I just want to--I do think
the points made about specificity in legislation are important.
When I was in the State legislature, I chaired the insurance
committee for a while. And I noted, every bill that would be
proposed by the Governor would give all these basically
unlimited powers to our superintendent of insurance, which I
would immediately take out before we would enact anything.
Because I do think it is important for legislators, if you are
writing laws, not to simply delegate the details. Now, some of
it, you are going to have to, obviously, by rule. But I think
we would be better served to have much more specificity in what
the Congress' will is and give less latitude to the executive
branch to do that.
And, again, I looked at the--something like 25 percent of
the American public follows President Trump's tweets. Roughly a
little bit higher percentage follows President Obama's tweets.
And I forget who made the point here, but individual Members of
Congress don't have the ability--the nature of what we do now
has dramatically shifted, and the nature of communications,
where a President, you know, probably up until relatively
recent history, would have to go through what was traditional
media. I mean, when I was a kid growing up, you watched Walter
Cronkite every night, and whatever you saw on CBS News or the
other networks was really the way that was communicated from
the Executive of the White House and, by the way, from Congress
to the American public.
But now it is so much different, that the President's
ability--and I don't think--I mean, the Founders really thought
Congress would be the voice of the people, right? One of these
talked about how each branch, from Article I to Article III,
each branch was less, sort of, of the people. We were the
branch that was to be chosen by the people; the executive by
the electoral college, which would be the will of the people in
the individual States; and then the Supreme Court, obviously,
through the President's nomination and ratification by the
Senate.
But now it has really changed, in that the ability to go
directly to the people is much more enhanced by the White House
and by the President, any President, than it is by individual
Members of the House and even of the Senate. And that has had a
dramatic impact on the way that we do our work. And I am not
sure we can ever put that genie back. I doubt we can.
Ms. Belmonte. But it has also injected a whole new level of
ambiguity. Is a tweet a policy statement? And that has created
endemic confusion on more than one occasion, both within our
country and among foreign countries. And it may be an area that
Congress asserting itself could add some clarity as to what
constitutes an official action of the U.S. Government.
Mr. Morelle. Well, I think that is a great question. And,
obviously, I don't think this President is going to be the last
one to use Twitter or other ways of communicating directly with
the American public. I mean, I think that is just the way it is
going to be, and I think you raise an important point.
So, anyway, I will conclude. I have many more questions,
but I am not sure they would in any way add to the debate here.
But I do want to again thank the chair and the ranking member
for, I think, a really, really important conversation.
The Chairman. Thank you.
Ms. Shalala.
Ms. Shalala. Thank you. I share my colleague's view in
thanking both of you for a really important discussion.
I have been on the other side, on the executive side, and
now on the legislative side. I have not been on the judicial
side, but I understand, and I want to point out to my colleague
from New York, that the Supreme Court does not require a law
degree----
Mr. Morelle. That is true.
Ms. Shalala [continuing]. For appointments.
Mr. Morelle. I don't think I will be a candidate, though,
anytime soon.
Ms. Shalala. So one way the Congress delegates authority to
the executive branch is also by badly drafted legislation--and
as someone that sat on the other side, we would somehow
celebrate a badly drafted piece of legislation because we could
drive a car through it and do whatever we thought was best--or
by delegating your responsibility directly to the executive
branch when they didn't want to make the decision.
And my example there is, when Congress did not want to
decide whether individuals should be able to import drugs from
another country, they said to the Secretary of HHS, okay, you
can do it as long as you are willing to say it is safe and that
it is cost-effective to do those two, which put the Secretary
in the bind as opposed to Congress in the bind.
And I could go through numerous examples, including HIPAA,
where the Congress could not agree on Kennedy-Kassebaum. They
agreed on the legislation but not on how it should be drafted
and what the guidelines ought to be. So it was sent over to the
Secretary of HHS to do those kinds of things.
The only point I want to make on that is about staffing. We
are totally dependent in the legislature on the Executive
telling us whether something actually can be implemented or on
special interest groups. Because we don't have the level of
staffing to talk about what the implications are or what the
impact of various policies would do.
Now, that suggests not only do we need additional staffing
but we need a certain kind of staffing. It does me no good to
have a conversation with young staff people who have some
policy chops, they think, but not necessarily can think through
what the implementation challenges are and who ought to
implement it and what their level of expertise needs to be
done.
I was once taught by a very smart secretary early in my
career that we should stop writing regulations for people that
have graduated with honors from Harvard as opposed to smart
people who didn't that needed to be able to implement those
kinds of regulations. And I just wanted to make that point.
And my final point before I ask a question is about the
coronavirus. With all due respect to my distinguished colleague
from Colorado, I actually don't think it should be an emergency
anymore. I think we are going to see these viruses all along,
and what we have to talk about is readiness and whether the
government is permanently funded for readiness to be able to
have the flexibility to be able to deal with each of these
viruses as they come along.
Now, we do have some experience in that, and I want to ask
Professor Pearlstein about that.
The Stafford Act, which was written actually for the
creation of FEMA, actually has real limitations when an
emergency is declared by the President. So it is possible to
release flexible funding, both resources as well as personnel,
in a limited emergency act, which we could use as a backup to
permanently funding on something like the coronavirus. And I
wanted to ask your comments on that possibility as opposed to
just these never-ending emergency situations.
Ms. Pearlstein. Thank you.
So I mentioned that other countries had drafted emergency
legislation and in other constitutions as well. Congress has
drafted other emergency legislation that remains on the books
that is vastly more specific and, I think, effective in
constraining the exercise of executive power than the National
Emergencies Act as such.
You mentioned the Stafford Act, for example; the Public
Health Emergencies Act--I forget the acronym exactly. But some
of these are vastly more specific in delegating power to
particular officials, requiring the exercise of particular
expertise, defining terms like ``emergency'' or ``necessity,''
and limiting the kinds of power that are going to be exercised.
So we have models that are at our fingertips, literally, and I
think we would be foolish not to rely on them.
The trick with the National Emergencies Act and IEEPA, the
International Economic Emergency--whatever it stands for--is
that these have become, instead of tools for dealing with
actual emergencies, dealing with chronic, longstanding,
ordinary exercises of government power. When and under what
circumstances are we going to impose economic sanctions or
trade sanctions or travel restrictions on countries that are
doing things that we disagree with?
And it is entirely possible and, indeed, I quite agree with
you, necessary to do both at the same time, to have emergency
powers that exist for certain limited periods of time as we
deal with a particular crisis and at the same time make sure
that we are funding and maintaining not only the institutes
that enable us to deal with emerging infectious diseases, which
happen all the time and have always happened and are likely to
get worse, but it enables us to deal with global public health
surveillance and other things that we might want to be able to
do all the time, not just in emergencies. Both are necessary,
but, at the moment, we do a lot of our ordinary policymaking
through these emergency authorities.
Ms. Shalala. Now that I have admitted that one way Congress
delegates authority to the Executive is by badly drafted
legislation--also by making legislation more complex.
And I wanted to ask you all about Chevron, because it gives
the Executive tremendous powers, it seems to me. And now that I
am on the other side, I would like to find a way in which we
could reverse that and at least get more balance in the system.
But that also means that we have to stop drafting bad--not bad
legislation, but badly drafted legislation and making
legislation more complex, like the Medicare Act, by adding
layers to it that actually gives the Executive more control.
So could you comment on that, any of you?
Mr. Prakash. I agree with you, Representative Shalala. I
think if Congress wants to delegate, it can do so. Chevron is
basically a presumption of delegation to the Executive. And I
think Congress can easily change that by just saying, ``We only
mean to delegate when we say the following words--`we delegate'
or when we say we are delegating. Chevron is just a rule of
construction that the courts came up with, and we hereby
repudiate it.'' And I don't think any court would continue
applying it.
The effect would be that the courts themselves would decide
the best interpretation of the good and messy statutes, and not
the Executive, which would yield more stability and prevent
this sort of attempt to try to make a mess of a statute.
I think executive branch lawyers now strive to find
ambiguity in a statute so they can then say, ``Look, there is a
mess here, and we are basically trying to fix it through
interpretation.''
Ms. Pearlstein. I don't disagree with any of that.
My former boss, Justice Stevens, who I had the honor of
clerking for, is the author of Chevron and often said during
his life that he never imagined or intended that it would
become this new rule of construction and deference to the
Executive. Rather, he thought he was restating the rule that
preexisted Chevron, which was, look, if the interpretation is
reasonable, then courts are in a position to endorse that
interpretation, but where interpretations are unreasonable, we
won't endorse them.
And what makes reasonableness in executive branch
interpretation is, for example, reference to record evidence
and deference to expertise. And where those things are lacking,
then the interpretation is much less persuasive.
This is an unusual time to begin reversing major decisions
of the Supreme Court. I am a believer in stare decisis. But I
am equally a believer that deference is warranted where
deference is deserved. And where you lack an internal executive
branch process that came up with the interpretation or where
you lack an internal executive branch reference to expertise or
basis in expertise that actually supports that interpretation,
then it makes much less sense.
Ms. Shalala. I yield back.
The Chairman. Thank you.
I think that is it with the questions, but I want to yield
to Mr. Cole if he has any closing remarks.
Mr. Cole. Yeah. Just quickly--and I want to pick up on
something my good friend from Florida said, just so you are
aware of this, and for the panel. I mean, sometimes Congress
actually does what it is supposed to do. For 5 years in a row,
NIH funding is up almost 40 percent; CDC, 24 percent; strategic
stockpile, 35 percent; new infectious disease--and I say that
simply because that was a conscious congressional policy that,
no matter what President Obama asked for or President Trump
asked for, we were going to be prepared in these areas for
exactly what is happening today.
Now, we can debate execution, but you really can't debate
resources. And that is Congress deciding. As a matter of fact,
I can just tell you, I had this discussion when now-Chief of
Staff Mulvaney was at OMB, and I said, this is going to--I was
chairman at the time--this is going to happen. Now, your budget
can reflect it, in which case you can take credit for it, or
you can be really stupid and propose a cut, in which case you
are going to get beat up for it--I will leave you to decide
which one he did--but it is going to happen.
And for those of you that worry about how the budget wars
go--and, with all due respect, the appropriations wars, to be
more accurate--we win a lot more than we lose. Just go look at
the Presidential budget at the beginning of the year, which I
will tell you, having helped draft executive budgets before, is
never a real budget. It is a statement, a political gimmick
anyway. But nothing like that emerges at the other end. And it
doesn't matter if it is President Obama or if it is--you know,
we make them submit a budget so we can change it and, sort of,
we get the last word on that.
So there is a lot of assertion of congressional power that
actually goes on here, and so it is not quite as atrophied as
you think. Our biggest problem is when we abdicate and we don't
do things like immigration or when we don't do things like
entitlement reform that we all know need to get done and we
don't arrive at a compromise. So we can do that.
But I want to get more to the point. Just, number one,
thank all of you. You clearly put in a lot of work, thinking
through the papers. The testimony has just been excellent. We
really appreciate the commitment of your time and your
expertise and your thoughts. It is incredibly valuable.
I think you have noticed just from the participation of
members how much they have enjoyed thinking about being
Members, thinking about the institutions, wondering, again, how
we could do our job better in a bipartisan sense even when we
have disagreements, wondering how we could restore the
appropriate constitutional balance.
I think a lot of you have tremendous suggestions in that,
which I hope, Mr. Chairman, we sit down seriously. You know,
everything from, you know, actually putting time limits on
emergencies to some of these other things, I don't see that
those should be partisan things that we can't do together.
And, finally, Mr. Chairman, I just want to thank you. I
mean, this discussion doesn't happen if you don't convene it.
This is, for the panel, way outside what we normally do on
the Rules Committee. I mean, this is the Speaker's committee
for a reason. Everybody up here is either appointed by the
Speaker or the minority leader. We don't go through the normal
confirmation process. Our job is really to shape the
legislation for the majority so it can move it and for the
minority just to offer the first line of defense and the first
argument back.
So for us to undertake something like this is a very, very
unusual thing. And it would not have happened were it not for
our chairman and his concern, long-term concern, about the
institution, the appropriate balance, and be willing to use
this as one of the appropriate instruments to bring it up.
So, Jim, I am very proud of you, very proud to be on this
committee as your colleague, and very much thank you for what
you have done here. I think it is a real contribution.
The Chairman. Well, I want to thank the gentleman from
Oklahoma, my friend, for his comments.
And I want to thank everybody on this committee, because,
as you can see--I mean, maybe because we are on the Rules
Committee and we meet more than any other committee and we see
every piece of legislation that comes to the floor--good, bad,
and ugly--that I think we are especially committed to this
institution.
And, you know, on this committee, there is the range of
political ideologies from left to right and everything in
between, and there are lots of policy differences that we have,
but I think we all believe that, over the years, we have given
up some of our constitutional authority in a way that is not
good for the people we represent. I think it is not in keeping
with the Constitution. It is just not good for the country. And
there are many reasons for that; we talked about a lot of that
today.
But the Rules Committee is also a committee that deals with
issues of procedures and processes. And so, to the extent that
there are tweaks or changes in how we approach some of these
issues, this is actually the right committee to be talking
about all this stuff. And I look forward, in the coming days
and weeks, to work with Mr. Cole and others to determine what
the next steps are. Some might, you know, be low-hanging fruit,
and we might be able to move more expeditiously on those, and
our subcommittees can delve more in detail on some of these
subjects.
The whole point of this is not just to have an intellectual
discussion. It is to figure out whether we can actually take
some next steps, actually change things for the better.
The final thing I would say to all of you is to thank you
so much. As you have probably have noticed, because I am sure
you have testified before other committees before, other
committees have time limits. But you have been here, like----
Mr. Cole. Not here.
The Chairman. Not here. Not here.
And I want to be very honest. You just have to keep this to
yourself. But we sometimes have very, very long hearings here,
and sometimes, oftentimes, it is Members of Congress who are
sitting where you are, testifying, and they go on and on and on
and on. And I am going to tell you this, just between us, that
sometimes, when it goes on forever, I look at the chandelier,
and I daydream and say, ``Please fall,'' you know?
It has never happened, but I want you to know--and I mean
this as a compliment--not for a second did I think that during
this hearing today. That is the highest compliment I can pay to
all of you. And I really mean it. This has been very helpful.
And we look forward to working with you as we flesh out some of
these ideas that Mr. Cole alluded to, because----
Mr. Cole. I don't think I will ever look at that chandelier
the same.
The Chairman. Yeah. But just keep it in this room, will
you? Okay.
With that, the committee is adjourned. Thank you.
[Whereupon, at 1:40 p.m., the committee was adjourned.]
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