Congress must find a way to reassert itself, not as a co-equal branch of government, but as first among equals.
President Trump has rewritten more norms of politics and policy-making than a Hollywood movie script. Perhaps the most disturbing, and least discussed, however, is the death of congressional oversight.
With the impeachment hearings moving closer to a debate over whether the Senate should hear from witnesses, it is worth remembering that the Senate is having this debate because of the scorched earth tactics employed by the Trump administration to prevent witnesses from testifying and evidence from being shared with Congressional investigators.
Every administration has, at times, an antagonistic relationship with Congress. As a former Congressional investigator, I am well aware of their delay tactics. Administrations will slow-walk responses to congressional inquiries, initially refuse to turn over documents, and claim executive privilege. In the end, however, a resolution is almost always worked out.
This administration has demonstrated an unprecedented disregard for the rule of law and may have forever killed any meaningful congressional oversight of the federal bureaucracy. That is bad for taxpayers and worse for democracy. Members of Congress, in defense of their own institution, will often refer to Congress as a “co-equal branch” of government with the executive branch. But the truth is, Congress is more than that; it is first among equals.
The federal administrative state is itself a creation of Congress. Federal agencies are created by laws passed by Congress, and Congress has the power to eliminate existing ones at will. Congress hires every federal judge and can overturn court rulings by passing new laws. It can also fire the president and dictates who the president can hire as his top advisors through the Senate confirmation process. It also controls the purse strings. Congress, and only Congress, decides how much will be spent on nearly every federal program, from Pell Grants to the military.
As a result of this enormous power, it has the responsibility to make sure that federal agencies are being good stewards of taxpayer dollars. History is littered with Congressional investigations that uncovered egregious abuses of power, graft and wasteful spending, from the Teapot Dome scandal in the 1920s to war profiteering during World War II to Watergate. In every case, the investigations relied on the ability of Congress to obtain documents and interview leaders, including, when necessary, close advisors to the president.
The Trump administration is challenging these norms and the laws underpinning them with extraordinary brazenness and a complete disregard for the future implications of its actions. The officials refusing to comply with congressional subpoenas during the impeachment proceedings is the latest example, but far from the most insidious. In the case of impeachment, some of the President’s closest advisors at least have a plausible case to make that executive privilege exempts them from being forced to testify.
More concerning for the future of Congressional oversight, though, is the striking regularity with which administration officials inside and outside of Trump’s inner circle – and even private citizens beholden to Trump – have disregarded Congressional oversight requests.
Kellyanne Conway ignored a House subpoena to testify about her violations of the Hatch Act, which forbids federal government employees from engaging in certain campaign activities. The Departments of Justice and Commerce continue to ignore subpoenas from Congress related to the administration’s attempt to add a citizenship question to the 2020 census. The administration has refused to turn over documents pertaining to military stays at Trump hotels. The White House has refused to answer questions or document requests on a proposal to transfer highly sensitive U.S. nuclear technology to Saudi Arabia.
The list goes on. All of these examples amount to a very public display of contempt for the rule of law. They also set a disturbing precedent for future administrations. This administration has demonstrated that Congress is essentially powerless to enforce oversight requests and subpoenas unless it is willing to revitalize its authority to actually detain people that refuse to comply. Future administrations can follow this example with impunity, and even expand upon it.
Why should any federal agency turn over a single document or provide a single witness for congressional hearings when it can tie the issue up in courts for years, by which point the purpose of the request might be moot anyway? The end of this very slippery slope is an unaccountable executive with nearly limitless authority.
Members of Congress from both political parties should be gravely concerned about preserving their oversight authority. Congress must find a way to reassert itself, not as a co-equal branch of government, but as first among equals.