As I have said, the Framers fully expected intense pulling and hauling between the Congress and the President.* Unfortunately, just in the past few years, we have seen these conflicts take on an entirely new character.
Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration.*
Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power.* It obviously connotes that the government is not legitimate.* This is a very dangerous – indeed incendiary*– notion to import into the politics of a democratic republic.* What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.**
A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process.* The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to*systematically*oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.
Yet that is precisely what the Senate minority has done from his very first days in office.* As of September of this year, the Senate had been forced to invoke cloture on*236*Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation.** How many times was cloture invoked on nominees during President Obama’s first term?**17*times.* The Second President Bush’s first term?* Four times.* It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.*
Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.* They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.*
This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.* More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.
Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.* And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.* I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.* But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas*– is plainly designed to incapacitate the Executive Branch, and indeed is touted as such.**
