The Congress That Wasn't There

Steve Calabresi has, I believe, been known to observe an interesting feature of the U.S. Constitution which, he thinks, reveals something about how the Founders viewed the Executive branch. While Congress is clearly considered the most important of the three branches, hence its placement in the first Article and that Article's length compared to those establishing the Executive and Judiciary, it was only really supposed to exist part of the time. Congress would have a couple of sessions per year, each lasting a couple of months. The rest of the time Congressmen would be at home in their states or districts, and given the state of transportation in 1789 it would be no easy thing to re-assemble Congress when it wasn't in session. When its members were out of town, in other words, Congress basically didn't exist. The President, on the other hand, always existed. He has no sessions and no recess; he's the President for every hour of all 1461 days of his term. The idea, Calabresi would (sensibly, I think) infer, is that the laws always need enforcing, but they don't always need changing. That, after all, is what a legislature does, at any given moment, and if the existing set of laws is working well enough you don't need anyone to do any new legislating all the time. The President can just set about running the government with the authority given him by the current laws. Now, Calabresi goes on to draw various conclusions about the scope of executive authority, I think, but that's not my point here.

No, my point is about what happened to this disparity between the President and Congress over time. Basically, it went away. As transportation has improved, we've reached the point where Congress does basically always exist. They're in session all the time now, except maybe over Christmas. Even when they're in recess, they could reassemble for an important vote with less than a day's notice. This has corresponded with a decline in the sensibility of the "laws don't always need to be changed but they always need to be enforced" point. In 1789, there wasn't that much statutory law. Most of the law was common law. That made the idea that the existing corpus of statutes would be working well enough to get along for a couple of months without any new laws relatively plausible. With the explosion of the regulatory state, a federal code that governs basically everything the Constitution allows federal governance of, and an incredibly complicated feedback process between the administrative agencies, the subjects of their regulation, and Congress, that idea is a lot less plausible now. We need a Congress basically all the time, or at least a Congress that's on call all the time and getting stuff done nearly all of the time.

But while it is a lot less plausible now than it used to be, that old idea hasn't lost all relevance. In fact, the current Congress basically might as well be out of session, back in their districts with a month's journey back to Washington. There is no overlap between the set of non-trivial legislation Barack Obama would sign into law and the set of non-trivial legislation that John Boehner and 217 of his closest friends would pass through the House. More to the point, everyone knows this, except maybe some centrist media types. Even if there are some ideas for new legislation that you'd think would satisfy both parties' agendas, Obama Derangement Syndrome prevents the Republicans from admitting it. So we don't get any new laws. But we have old laws, and Obama gets to administer them. That actually gives him a lot of policy-making authority, which he'll hopefully make major use of this year. That's somewhat different from the 1789 concept, but the similarity is unmistakeable: our government right now consists of an executive branch, a judicial branch, and an extensive legal code, with a legislature which could in theory exists but is currently choosing to act like it doesn't.

Now, no one is exactly happy with the current state of federal statutory law. And Republicans are surely not happy with letting Obama use his authority to enforce such things as new environmental regulations. There are probably things Congress could be doing, major pieces of legislation it could be passing that should be net improvements over this President-and-no-Congress status quo from both parties' perspective. But the Republicans aren't willing to offer Obama anything that he'd find better than the status quo; that's Obama Derangement Syndrome, wherein the simple fact that Obama likes something is sufficient reason for Republicans to dislike it, independent of its actual merits. They keep offering him things that they want but that he doesn't want; given his ability to just keep on takin' care that the laws be faithfully executed, he has absolutely no reason to agree to those things. Thus the era of manufactured crises: every time the status quo expires, every time we actually need new statutory authorization for the government to continue operating, this dynamic vanishes. Obama can't just keep on running the government. In theory, taking away that floor on potential outcomes gives the Republicans the power to get Obama to agree to something he likes worse than the status quo. In practice, Republicans also lose the floor on possible outcomes, and they're not as willing to free-fall into the abyss as they'd like us all to believe, for some reason. Or maybe they're just not willing for us to believe that they're that willing to fall into the abyss.

Either way, it looks like they've finally gotten the message that manufactured crises don't really work. That means we might be in for a whole year or so in which Congress pretends not to exist, and the President is perfectly happy to go along with that pretense.