How Congress Became Colonized by the Imperial Presidency

Ever since Arthur Schlesinger’s 1973 book coined the phrase, the so-called “imperial presidency” has been a perennial topic of our national political discourse. At a time when the American branches of government are separate but unequal, the seven essays collected in The Imperial Presidency and the Constitution trace when fears of an imperial presidency first arose, the extent to which such fears are justified and what can be done about it.

Adam J. White’s contribution, “The Administrative State and the Imperial Presidency,” cautions not to conflate the “imperial presidency” with the administrative state itself. As White points out, the administrative state is “first and foremost a creation of Congress,” and “to at least some extent, a necessary creation.”

By contrast, the imperial presidency refers to the power the president wields through his office. While this power can be channeled and enhanced through the apparatus of the administrative state, an imperial presidency also “can restrain the administrative state, as in the Reagan administration … and, less obviously, the administrative state can restrain an imperial president.”

In modern times, of course, the power of the presidency and the administrative state have grown in tandem. “The president wields executive power broadly to expand the administrative state, and the administrative state acts in service of the current president’s agenda,” White writes.

After various failed attempts by Congress itself to act as an administrative body during the Articles of Confederation era, the U.S. Constitution provided for an energetic executive, which Alexander Hamilton described as “essential to the steady administration of the laws.” Despite this, the Constitution offered little in the way of an affirmative vision of the administrative bureaucracy, an omission some scholars have referred to as “the hole in the Constitution.”

Although there were earlier antecedents, Congress’ creation of the Interstate Commerce Commission in 1887 marked the modern administrative state’s arrival. Ove time, the ICC’s powers were enhanced by Congress to encompass both judicial and legislative powers, given its ability to both set rates and adjudicate disputes. During the Progressive Era and through the New Deal, more administrative agencies were built on the ICC model, including the Federal Trade Commission and Federal Communications Commission.

Importantly, these agencies were distinct from the traditional executive branch departments and thus operated “outside of the direct oversight of the president,” White notes. Progressive policymakers—starting with some in the Franklin Roosevelt administration—quickly grew frustrated with the agencies’ ability to “impede an energetic liberal president’s regulatory agenda.”

Years later, conservatives also began to bemoan the independent nature of certain agencies. As the Reagan administration sought to cut back on the regulatory state, it attempted to increase the president’s power over the administrative state through mechanisms such as centralized regulatory review under the Office of Information and Regulatory Affairs. Since Reagan, presidents of both parties increasingly have embraced greater presidential control over federal agencies. Some used that control to expand the administrative state’s power, while others have sought to curtail it.

The “most straightforward” way to shrink the administrative state, White argues, “would be for Congress to do the work of taking delegated powers away from the agencies, by amending statutes.” Since many legislators prefer to delegate their power in an effort to avoid responsibility, White views this option as unrealistic.

This leads White to the “second best option,” which is to pass some form of broad regulatory reform legislation that revamps the processes through which agencies enact rules. He mentions the REINS Act and the Regulatory Accountability Act as two possible options. R Street actually has identified a whole menu of options from which Congress feasibly could choose.

More broadly, White points out that using the imperial presidency as a means to control and direct the administrative state is no longer an effective mechanism to rein it in. Rather, it’s far past time that the other branches assert themselves and join the fray. One possibility is for the judicial branch to revisit its doctrines that grant significant deference to federal agencies.

In many ways, Andrew Rudalevige’s contribution, “Constitutional Structure, Political History and the Invisible Congress,” picks up where White’s essay leaves off. When the system of separated powers works as intended, the legislative and executive branches operate as “rivals for power,” making their relationship contentious, rather than cooperative. Although the Founding Fathers were more concerned about the legislature accreting power than the executive, Rudalevige’s chapter retraces how both structural and political factors have created the exact opposite dynamic.

Rudalevige lays out an obvious—but often underappreciated—truth: the president has a built-in advantage in that he is just a single person. By contrast, Congress must function as a 535-member conglomeration of legislators spread across two different chambers and hailing from different political parties and geographical regions. Given that each member carries “their own localized electoral incentives,” they will “rarely find it in their interests to work together, much less to confront the executive branch.”

Another factor Rudalevige pinpoints for Congress’ decline is the rise of political polarization. Politics has increasingly become a team sport: “A vote against presidential overreach is now seen by the president’s party colleagues as damaging to the party brand, and thus to their own careers.” The result is that legislators are more likely to toe the party line in pursuit of short-term policy victories, rather than vote to strengthen Congress as an institution.

Rudalevige also highlights how modern travel has allowed congressmen to transit back-and-forth from their home districts to Washington with relative ease. This has led to the rise of the “Tuesday-Thursday club of drop-in legislators,” who spend more time pressing the flesh with donors and constituents back home than doing the hard work of hammering out legislative compromises. One option is for Congress to extend its work weeks, which could increase the amount of floor time available to conduct legislative business.

Exercising more effective oversight doesn’t just mean finding more time; it also requires more capacity. Rudalevige cites R Street’s Kevin Kosar, who has chronicled the decline in congressional staff and pay levels over the past 40 years. Beefing up congressional staff, as well as support systems like the Congressional Research Service, would help address this deficiency.

Other possibilities include forming new institutions such as a Congressional Regulation Office—as proposed by Kosar and the Brookings Institution’s Phillip Wallach—to provide independent cost-benefit analyses and retrospective reviews of regulations. A final idea—and one long advocated by policy wonks—is a return to “regular order” budgeting, in which Congress breaks the federal budget into bite-sized pieces rather than relying on last-second, thousand-page omnibus spending bills to keep the government’s lights on.

While all of these ideas are available and ready for the picking, Rudalevige admits that “current returns are unpromising” that Congress will actually implement any of them. Nonetheless, he’s correct in warning that “the matter demands our attention even so.” Let’s hope Congress—and the American citizenry—heeds his call.