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Can Congress reclaim authority it has handed over to the president? It’s trying.

With their bipartisan backing, these bills could claw back some powers that have shifted to the presidency.

- August 19, 2020

Editors’ note: This article is part of “Rethinking Our Democracy,” a series on institutional reforms to Congress and the presidency, which is a joint initiative by the Center for Effective Government at the University of Chicago and Protect Democracy. All other articles within this series can be found here.

Over the past 18 months, members of Congress have introduced resolutions and bills aimed at reasserting congressional authority. On Dec. 12, 2018, Sens. Bernie Sanders (I-Vt.), Mike Lee (R-Utah) and Chris Murphy (D-Conn.) sponsored a joint resolution, which passed on a 56-to-41 vote. The measure used provisions of the Watergate-era War Powers Resolution to force an up-or-down vote on whether the president could deploy U.S. forces in Yemen. The senators claimed the president had no authority to do so.

That began an effort to reassert congressional authority over the president’s emergency and other powers. Here’s where it came from — and what it means.

The Supreme Court killed one of Congress’s best ways of checking presidential authority

This isn’t the first time that Congress has tried to claw back power. In the 1970s, it responded to Watergate and other scandals by introducing a “legislative veto,” which allowed one or both chambers of Congress to overrule an executive branch decision with a single-chamber or concurrent resolution.

This veto power aimed to strike a balance. Congress recognized that the president sometimes needed to act quickly and that the executive branch takes many routine decisions that Congress doesn’t need to get involved in. However, Congress wanted to be able to use a veto to overrule the president’s decisions if needed and to reverse rare executive branch decisions that Congress opposed.

But the Supreme Court ended that veto in its 1983 decision INS v. Chadha. The court ruled that Congress could typically perform its legislative function only by presenting a bill to the president for signature or veto. This prevented Congress from responding quickly to check the president unless it had the supermajority needed to override a presidential veto. The court effectively took away Congress’s ability to constrain executive powers.

Congress increased political costs by exercising the veto anyway

The Sanders-Lee-Murphy resolution was the first time that the Senate had tried to use the legislative veto provisions in the War Powers Resolution. But it didn’t stop there.

Several other provisions provided legislative vetoes using procedures similar to those in the War Powers Resolution to force on-the-record votes. By August 2020, the president had had to veto three resolutions that would have ended his declaration of a national emergency at the border with Mexico; three resolutions to cut off weapons sales to Saudi Arabia; another Yemen-related resolution under the War Powers Resolution; and a War Powers Resolution after the strike on Iranian Gen. Qasem Soleimani.

In each case, Congress failed to override the veto, and the presidential action stood.

Efforts to constrain presidential power are beginning to make headway

In addition to forcing votes, members of Congress introduced several bills to shift power in Congress’s direction.

Consider one proposal for limiting the president’s national emergency powers: Sen. Mike Lee’s Article One Act. Under this, a presidentially declared national emergency would expire after 30 days — unless Congress passes a joint resolution renewing it for a year. That bill has been reported out of the Republican-led Senate Homeland Security and Governmental Affairs Committee on an 11-to-2 vote, backed by all but two Republicans. While Lee’s bill has bipartisan support, so far, its co-sponsors are all Republicans. However, House Democrats have included a slightly modified version of the bill in their Congressional Power of the Purse Act, which targets executive authority over spending.

Further, Sens. Patrick J. Toomey (R-Pa.), Mark R. Warner (D-Va.) and others have introduced the Bicameral Congressional Trade Authority Act, which has bipartisan support in the House and Senate. This would require congressional approval before the president could introduce tariffs on national security grounds. Sens. Thomas R. Carper (D-Del.), Toomey and others have introduced the Trade Certainty Act, which would require Congress to approve any tariffs imposed as part of a national emergency.

Sen. Richard Blumenthal (D-Conn.) and others introduced the Civil Act, which amends the Insurrection Act of 1807, which allows the president to deploy the military in cases of domestic insurrection. The Civil Act would require a congressional joint resolution to continue any such deployment beyond 14 days, along with requirements for congressional consultation and judicial oversight.

Together, these bills illustrate a framework that would reallocate powers between Congress and the president in these national security areas, and more broadly. First, Congress could define more precisely when the president is empowered to act and require the president to articulate what powers are being used and why. Second, Congress would maintain control of an issue by automatically sunsetting the action unless Congress affirmatively authorizes it, bypassing Chadha. Third, Congress could provide rapid judicial review and add a prohibition on expenditures not authorized by Congress to ensure compliance. Together, these would subject presidential actions to both congressional and judicial review.

These separation-of-powers bills could change Congress

These proposed changes would of course affect relations between Congress and the president. But they would also change the operations of Congress itself. In voting on matters of national importance, individual senators and representatives would have to reveal what they supported or opposed. This might undermine party unity, one reason congressional leaders often try to prevent such votes. Unusual cross-partisan coalitions may emerge. For instance, 12 Senate Republicans broke with Trump and Senate Republican leadership on the national emergency and the border wall; and in June 2019, Sen. Lindsey O. Graham (R-S.C.) actively fought Saudi weapons sales.

In this new world, individual members of Congress would have a practical way to support or oppose the president’s agenda. Instead of going on TV or sending campaign emails, their votes could actually change policy. In short, Congress may be stumbling into a new way of expanding its role and interacting with the executive. And with bipartisan backing, some reform in the next four years may be likely.

Mort Halperin is a senior adviser at the Open Society Foundations.

Soren Dayton is a policy advocate at Protect Democracy.