Don’t like the president’s “power grab” on ISIS? Blame Congress.

Pundits on both sides of the aisle are criticizing the Obama administration’s decision to bomb ISIS targets without seeking congressional approval.  For example, Andrew Sullivan compares Obama’s actions to those of his predecessor, George Bush, calling the president’s decision a “dangerous executive power-grab.” As someone who favors a strong legislative branch, I agree with Sullivan’s normative point.  Obama should seek Congress’s approval.  But I’m more interested in why he hasn’t.

Here’s my position on the balance of power between the legislative and executive branch: If you don’t like presidential “power grabs,” blame Congress.  Granted, this argument isn’t entirely mine.  See two excellent pieces by Jonathan Bernstein (here) and Doug Mataconis (here) making the same basic point.  Nonetheless, I’d like to add a few additional points to this important discussion.

Let’s start with the broader institutional landscape before focusing on the specifics of this case.  Regarding the broader dynamics, it’s important to keep in mind that what we’re talking about is a systemic transfer of power between branches dating back almost a hundred years.  And in each instance, much of the blame lies with Congress itself.

For example, we could draw upon the so-called “Two Presidencies” thesis.  Fifty years ago, Aaron Wildavsky published an influential article arguing that the “foreign policy president” has greater authority compared to the “domestic policy president.”  At the heart of Wildavsky’s argument is his view that, while presidents have more formal power in foreign policy, Congress (in both WWII and the Cold War ) ceded much of it's power over foreign policy (adding to the disparity) rather than the president exercising a naked power grab.

Scholars have made similar claims about the Congresses of 1960s and 1970s.  In “Congress, the Constitution, and the Crisis of Legitimation,” Larry Dodd argued that Congress’s decentralized structure (where, in this period, committee chairmen reigned supreme) hurt the institution in a series of power struggles with the president. Simply put, with a decentralized framework, Congress undermined its own legitimacy and the belief that it should act.

If we fast forward, we can see that the modern Congress has the exact opposite problem.  While Congress is a highly centralized body today (where party leaders reign supreme), the institution is hamstrung by polarization and, ultimately, gridlock.  In the “Broken Branch,” Thomas Mann and Norman Ornstein contend that representatives and senators lack “institutional patriotism.”  Rather than defend the institution they serve in from executive encroachments, lawmakers identify as partisans first and foremost and do little to enhance the legislature’s institutional capacity.  As an example, consider the so-called “nuclear option” (both instances, in 2005 and 2013) where partisan goals clearly trumped institutional norms.

So in sum, the simple point is that executive “power grabs” are not unique to Obama or modern-day presidents.  Political scientists have noted that Congress has gradually abdicated its own authority in every decade since at least the 1940s.

On the specifics of this controversy, there are a number of things to keep in mind too.  For starters, the president’s justification for bombing ISIS targets comes from prior authorizations passed in 2001 and 2003.  Furthermore, and as Tim Kaine noted in his New York Times editorial, Congress worded these authorizations broadly, without temporal or geographic restrictions.  So in this respect, the Obama administration’s “authority” came from Congress (not some unfounded power grab).

Is Congress powerless in this respect?  No.  Congress can simply revoke the president’s authority.  How?  By passing a law!  In a more general sense, Congress could defund the war effort or impeach the president.  Will lawmakers do any of this?  Of course not.  Less than a month ago, Congress voted overwhelmingly to approve Obama’s proposal to arm moderate Syrian rebels.  Just 22 senators and 156 representatives voted no (with an even balance of Democrats and Republicans in opposition).  In my mind, that’s a sufficient proxy for how a vote on bombing ISIS would turn out.

So, it’s not that Congress is “incapable” or “powerless” against a tyrannical president.  Rather, lawmakers on both sides of the aisle are simply “unwilling” to act.  On this issue, retiring Representative Jack Kingston summed it up perfectly:

A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later.’ It’s an election year. A lot of Democrats don’t know how it would play in their party, and Republicans don’t want to change anything. We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.

A final counter argument is that the president should force Congress back from its recess (see for example Eugene Robinson if the Washington Post here).  First of all, there’s nothing stopping the Congress from calling itself back into session.  But second, and more importantly, the president’s power to call Congress back into session is a very powerful tool.  As such, it should be used sparingly.  In fact, since the passage of the 20th Amendment (which moved the start of Congress’s session from March 4 to January 3), there have only been four instances where the president called Congress back into session.  Since 1950, there have been none!

So while the president certainly could call Congress back, that power should be reserved for national emergencies.  Besides, if the president called Congress back for an emergency session, that would be yet another instance of the executive branch exercising its constitutional authority over the legislative branch.  If you're opposed to presidential “power grabs,” is that really what you want?  As a proponent of a strong legislative branch, I’d much rather Congress call itself back and exert its own constitutional powers.  I don’t blame the president, I blame Congress.