The limits of congressional power

                Based on the posts thus far, one might assume that the power of Congress is a considerable one. The founding fathers laid down a number of enumerated powers to enable the legislature to act as the dominant branch of government. Moreover, the elastic clause (which relates to all necessary laws) of the Constitution clearly confers significant legislative powers upon Congress. However, the power of Congress is limited by four factors; which we will now consider. These include the power of the President, the inability of Congress to adopt a constructive approach, the judicial branch and the role of public opinion.

                The great tragedy of American politics is that neither the White House nor Capitol Hill can ignore each other, nor operate effectively without each other! In the memorable words of Samuel Finer; they are “two halves of a bank note, each useless without the other.” The American system demands compromise and co-operation between the legislature and the executive. These separated institutions ultimately must share power, as opposed to power being concentrated into one particular branch. As such, the executive branch serves to limit the power of Congress.

                On the subject of the relationship between the White House and Capitol Hill; it is worth noting that the executive branch has gained from implied powers at the expense of what the founding fathers intended for the legislative branch. Few areas express this as succinctly as American foreign policy (Schlesinger, 1973). In the domestic realm, the relationship between the White House and Capitol Hill is far more balanced. Indeed, there are times during divided government when it appears that the White House and Capitol Hill are competing with each other to direct domestic policy.

                If the first limitation is an external imposition, the second is entirely of its own making. As previously alluded to, the phenomenon of ideological polarization has exacerbated tensions between the two main parties. The ability of congressional leaders from the majority and minority parties to reach agreement has therefore become more difficult than in previous generations. For instance, the Republican Party in Congress can no longer rely upon the votes of Dixiecrats over social and moral issues. The number of social conservatives in the Democrat party representing southern areas is in long-term (perhaps even terminal) decline. Equally, Democrats can no longer appeal to a number of liberal Republicans from the North-East and the West Coast. Relations between the two parties within Congress can therefore descend into political point-scoring, in which congressional leaders act in a manner more in keeping with their contemporaries in parliamentary systems. The behavior of congressional members is shaped to a significant degree by ‘over-your-shoulder’ politics which serves to deter the creation of a constructive, bipartisan agenda. To use a simple analogy, those that wander towards the middle of the road are likely to be run over by a more ideologically pure candidate during a primary.

                Another limitation upon the legislative branch is the judiciary. Any law passed by Congress can be ruled unconstitutional by the Supreme Court. However, this is a fairly weak constraint because Congress can pass a new law if they feel the judicial branch has made the wrong decision. One might extend this point to claim that the Constitution also places a constraint upon members of Congress. However, even the possibility of the judicial branch striking down a piece of legislation as unconstitutional acts as a genuine constraint upon Congress. Finally, the actions of Congress must reflect the boundaries of public opinion. The public can always ‘vote the bums out’ if they are unhappy with their members of Congress. This however is a somewhat complex equation. The old cliché that ‘Americans hate Congress but love their congressmen’ is as relevant now as it’s always been. Whilst Congress is widely viewed as the broken branch of government, incumbents (particularly the House) are re-elected in very high numbers. That said; each elected representative must listen to public opinion and be mindful of it.

                As with any institution, the powers of Congress rest upon a number of dependent factors. Inevitably, the power of Congress will therefore fluctuate over time. During a period of unified government, the willingness of Congress to fully scrutinise the executive branch will for instance be considerably weaker than during a period of divided government. Obama has clearly faced a greater level of scrutiny since the Democrats lost control of the lower chamber in the 2010 mid-term elections. House Republicans have therefore been more willing to use the apparatus available to them than the Democrats that controlled the House from 2009 to 2011 under House Speaker Nancy Pelosi.