A New Way to Legislate: Enhancing the Powers of the Presidency and Congress – N.Y.U. Journal of Legislation & Public Policy

By: Matthew Bergbower, Ph.D., Associate Professor of Political Science at Indiana State University

September 25, 2019

America’s practicing democracy is crippled by institutional gridlock between Congress and the presidency. To accomplish big policy changes, major reforms to how we govern are needed.

In the coming weeks, President Donald Trump will send the United States-Mexico-Canada Agreement (USMCA), also known as the new North American Free Trade Agreement (NAFTA), to Congress for consideration. The USMCA updates important U.S. standards in policy areas such as labor, manufacturing, farming, pharmaceutical drugs, copyright laws, and tariffs. The broad, detailed agreement covers so many policies that every congressional member will probably find something to like and dislike in the new agreement.

The USMCA, much like the 1994 NAFTA, is not a treaty. Thus, the constitutional rules of a foreign agreement having to be approved solely by the Senate with a supermajority two-thirds vote do not apply. The USMCA instead must be approved by a simple majority in both the House and Senate. Neither chamber is allowed to amend the language of the agreement, which is submitted to Congress by the White House. The Senate cannot filibuster nor threaten to filibuster the agreement and force a cloture vote. Instead, both chambers of Congress have a set time period to study, debate, and vote on the agreement. This unique restraint on the congressional rules of debate that grants a president the ability to directly submit policy for a vote is called fast-track. Congress has periodically granted such authority to presidents since the Gerald Ford administration, but only in the area of international trade agreements.

A Closer Look at Fast-Track

At first glance, fast-track sets some fairly reasonable expectations on congressional debates and approval. In fact, it presents a textbook method for how legislation ought to be approved. In essence, a bill is written by an expert politician (albeit, with fast-track, by a White House official rather than a member of Congress), and that bill is given a fixed time period in each chamber so that Congress can consider the particulars and debate the merits before a vote is made by all. Under these processes, no Rules Committee can hold the bill indefinitely, no standing committee chair can refuse to hold a vote on the bill, no majority leader can keep the bill from being debated on the chamber floor, and no rogue senator can filibuster the bill until its scheduled debate time has expired. Fast-track is a seamless, methodical method for getting policy approved. In all other areas of legislating, the policy-making process has morphed into the ugliest form of “sausage-making” noted in Upton Sinclair’s The Jungle.¹

Granting presidents fast-track authority for all policy arenas, not just international trade, is a prioritized reform proposed by political scientists William Howell and Terry Moe in their book Relic.² After systematically breaking down the flaws of the Constitution and the warped priorities of Congress, Howell and Moe convincingly argue that in order to effectively address government shutdowns, legislative gridlocks, outdated domestic policies, and wasteful spending, it would be best to amend the Constitution to allow presidents to propose legislation to Congress with fast-track authority rules. In their normative argument, Congress can still make laws via the traditional route, but legislation can also be passed via the fast-track alternative.

Gridlock in Washington D.C.

Congressional failures are now well documented. President Barack Obama consistently asked Congress to act on major issues of the day like immigration reform and gun control. During the 2013 State of the Union Address, Obama challenged Congress to help homeowners refinance their mortgages. He said, “Take a vote, and send me that bill. Why would we be against that? Why would that be a partisan issue, helping folks refinance?” Unfortunately, the Responsible Homeowner Refinancing Act of 2013 was never even considered in its assigned Senate Committee on Banking, Housing, and Urban Affairs. That same year, Syrian President Bashar al-Assad was charged with using chemical weapons in an attack on Ghouta—a suburban area known for its opposition to the al-Assad regime. Select hawks in Congress had been critical of Obama’s timidity with Syria during the preceding months of civil war conflict. Accordingly, Obama spoke in the Rose Garden of the White House and asked Congress to act and grant him a use of force authorization. The resolution failed to receive a vote in either chamber. These examples are just two out of hundreds wherein presidents have pushed for policy but Congress procrastinates. The beauty of fast-track is that it forces Congress to vote rather than avoid votes out of fear of electoral repercussions.

Undoubtedly, Obama’s policy-making troubles were a byproduct of divided government. In 2017 and 2018, Trump had little problem achieving much of his legislative goals under a unified Republican government. The record shows Trump and the 115^th Congress were able to pass their tax cut plan, increase benefits for veterans, eliminate the Obamacare individual mandate, increase opioid prevention and treatment efforts, enforce a new criminal justice reform package, and stiffen penalties for human trafficking. On the whole, Trump exercised his role as Chief Legislator quite well in his first two years in office. The gridlock and ugliness of national policy-making were not as prevalent during those years. Of course, all this efficiency in governing came to a dramatic end when Trump demanded a border wall from the lame-duck Congress set to turn over in January 2019.

Questioning a More Powerful Executive

Relic³ was published in 2016, months before Trump was elected president, but reading Relic⁴ during the Trump era inspires a truly challenging thought experiment: Can one entrust greater policy-making authority to a president of whom one strongly disapproves?

What would Trump try to fast-track if he had fast-track powers on all policy issues? A $15 billion border wall comes to mind first. He would have pursued that during his first 2 years in office because at that time he held Republican majorities in both chambers of Congress. Surprisingly, though, the border wall was addressed very little by Congress in 2017 and 2018. Only with a government shutdown looming in the last week of December 2018, did Trump find it necessary to force Congress to address border wall funding. The votes for funding were not there, the longest government shutdown ensued, and a national emergency was declared. In this instance, Trump did not rely on fast-track authority to get funding for his border wall; instead, he made it happen by declaring a national emergency (as long as the courts agree). Had Trump attempted to fast-track his border wall and it was voted down by Congress, the emergency declaration might still get issued. Thus, the border wall gets approved by an emergency declaration with or without the hypothetical fast-track powers existing.

This is a common tale in the evolution of the modern presidency—presidents find ways to expand their powers beyond what was constitutionally intended. The record is vast, with examples that include executive orders, signing statements, undeclared wars, and national emergency declarations. From Abraham Lincoln’s Emancipation Proclamation to Obama’s deferred action for families who entered the country illegally to a border wall declaration, presidents have found ways to exercise great authority despite the fact that neither the Constitution nor Congress specifically grants them the powers to do so. The evolution of executive authority clearly demonstrates that presidents are more than willing to bend constitutional arguments so that their goals may be implemented.

In light of these facts—a polarizing president with high disapproval ratings and a Congress unable to get things done because of division—we are faced again with the question of whether empowering the Executive Branch is the best solution to America’s policy-making problems? If so, is the best reform fast-track authority? Based on a Jeffersonian democracy philosophy, one could easily hypothesize that empowering Congress is a better alternative than empowering the presidency. If Congress were to be empowered, what would that power be? Would members of Congress behave differently under such changes?

The same congressional activities that frustrate citizens—such as the Senate cloture rule, the Rules Committee power to withhold bills from consideration, and ideologically extreme caucuses interrupting the will of the majority—must also frustrate members of Congress. Added to these obstructions of the legislative process is the veto power of the president. Why should senators and representatives exert extreme effort legislating a bill when they already know that the president will likely veto it? Clearly, members of Congress are keenly aware of the problems of policy-making.

Now imagine if the presidential veto threat no longer posed an obstruction to congressional deliberations and lawmaking. What if Congress had the power to pass legislation by a majority vote in both chambers? This situation is not an unheard of lawmaking procedure. For instance, pure parliamentarian systems of government do not have an executive veto option. Further, one can simply look at some state governments for guidance on powerful legislative bodies. In one variation of this simple majority lawmaking process, the Indiana state constitution outlines a veto override process whereby the general assembly can overturn a governor’s veto by a simple majority vote in both chambers.⁵ In essence, the same votes needed for the Indiana bill to go to the governor’s desk are all that is needed to override a veto from the governor.

A National Need for Better Governing

Both fast-track and the simple majority lawmaking procedure would take a constitutional amendment to implement. Furthermore, both proposals may appear to be too extreme, for one gives too much power to the executive and the other gives too much power to the legislature. However, we still recognize long periods of time where it is almost necessary for one or the other to exist. During the 35-day government shutdown, the nation could have benefited from a Congress holding simple majority lawmaking power. Undoubtedly, Congress could have prevented the shutdown or shortened it. On the other hand, when Obama and a bipartisan group of senators worked to reform the nation’s immigration policy in 2013 (Border Security, Economic Opportunity, and Immigration Modernization Act of 2013) it would have been beneficial to the nation for the president to have been able to force a vote in the House.

Overall, these two options mirror the constitutional debates seen in the nation’s infancy, when Alexander Hamilton and John Adams favored a stronger executive but Thomas Jefferson and James Madison favored a strong legislature.⁶ Perhaps another great compromise is needed to reconcile the power struggle fears seen in both reforms. Instead of one or the other, have both. Further, instead of the fast-track and the simple majority lawmaking procedure being allowed in all circumstances, limit their usage. Specifically, allow Congress on a specified number of occasions to exercise its simple majority lawmaking authority per session and grant the president the privilege to exercise fast-track authority a specified number of times per term in office. Adopting both reforms in a limited capacity attacks the real virus of legislative gridlock—a constitutionally designed and Montesquieu inspired checks and balances system that cripples policy adoption. Empowering both branches at the same time will cause less anxiety regarding one branch having more control over the lawmaking process and, more importantly, will ensure a federal government that gets things done when the public needs it the most.

Author’s Note: Matthew L. Bergbower is an Associate Professor of Political Science at Indiana State University. He teaches and does research in the area of American Politics. His book, A Profile of the American Electorate, was published by Routledge in 2018. Some of his other work can be seen in Social Science Quarterly, Journal of Elections, Public Opinion & Parties, Democracy and Security, and the Journal of Political Science Education.

Suggested Citation: Matthew L. Bergbower, A New Way to Legislate: Enhancing the Powers of the Presidency and Congress, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2019).

1
Upton Sinclair, The Jungle (Millennium Publ’ns 2014) (1906).
2
William G. Howell & Terry M. Moe, Relic: How Our Constitution Undermines Effective Government—and Why We Need a More Powerful Presidency (2016).
3
Id.
4
Id.
5
Ind. Const. art. V, § 14 (amended 1990).
6
Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (First Vintage ed., Vintage Books 1998) (1997).