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Congress Make Yourself Relevant Again

William L. Kovacs

November 2022

Congress Make Yourself Relevant Again

Congress has worked hard over the last few decades to make itself an irrelevant institution. It has achieved a bumbling status by failing to use its power to control spending and by delegating such significant power to the Executive that it has diminished its ability to resolve the nation’s primary issues.

If the United States is to remain a strong, free and competitive nation, Congress must make itself relevant again. To be relevant every member of Congress must give their loyalty to the institution of Congress; not to the political party that helped elect them. Being loyal to Congress allows each member to be a real check on the Executive and a trustee of the Constitution.

The only power “We the People” have to control government is our power to vote for members of Congress. We do not vote for the President, that is done by the electoral college and a convoluted quilt of state voting laws, state legislatures, and election officials. The entire federal judiciary is appointed by the president, Additionally, the millions of nameless bureaucrats that regulate almost every aspect of society are appointed by the Executive branch.

By wisely using its spending and delegation powers, however, Congress can reclaim its dignity and its constitutional obligation to be the nation’s lawmaker.

Congress can be relevant by “Just Saying No”

Congress has one power that no other branch of government can interfere with – it is the power to spend or not spend money. The Constitution is clear, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…”

Congress has failed to control spending for decades. It cannot even follow its own rules and pass the twelve appropriations bills by the October 1, start of the fiscal year. The last time Congress passed all twelve appropriations as separate bills was in 1996. Generally, Congress keeps the government running with Continuing Resolutions that fund the government at a prior year’s level. By spending trillions of dollars of taxpayer money with little, if any, review of the program citizens are paying for, Congress ensures that the federal government remains an unsupervised behemoth.

The common view of congressional powers is that Congress legislates and spends money by passing a bill in the House and Senate and sending it to the president for signature or veto. If the president vetoes it, Congress needs a two-thirds majority to override it. An intentionally difficult process.  But there is a simple mechanism for Congress to control the Executive. Both houses of Congress have one very real, but rarely used, power that permits one or both houses, to control federal spending and the growth of government, without passing a law.

It is the power of one house of Congress to refuse to spend money. Without passing an appropriation, no money can be spent. The use of this power allows a majority of one House of Congress to shrink the federal government without the difficulty of passing a new law. Reducing the size of the government, its bloated budgets, and massive debt is as easy as “Just saying no!”

Congress can make itself relevant again by reclaiming the emergency powers it delegated to the President before a dictator arises

Nothing in our Constitution can be more explicit in intent than the first sentence which reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” By granting emergency powers to the Executive, Congress has placed itself in a difficult situation. It gives the Executive broad authority to act in lieu of Congress. Once presidents hold such power, they are unlikely to easily relinquish it.

Historically, emergency powers were limited to wartime and natural disasters. But today, non-war-time presidents exercise war-type emergency powers to control citizens in a domestic setting. The Covid pandemic highlights how emergency powers can be used by a president to rule without Congress.

From the start of his presidency, Biden has aggressively relied on congressionally delegated emergency public health powers to enact new laws. He extended President Trump’s national emergency order indefinitely on the Covid pandemic by imposing mask and vaccine requirements on the nation while keeping the science supporting its proclamation secret.

Biden also mandated that 84 million Americans subject to the Occupational Safety and Health Act either obtain a Covid-19 vaccine or submit to weekly testing and imposed a nationwide eviction moratorium allegedly to stem the spread of Covid.

In his second year in office, Biden forgave $600 billion of student loan debt. His asserted authority is the 2003 Higher Education Relief Opportunities for Students Act (“HEROES”). Once these powers are delegated to the president, in a divided Congress, it is unlikely they can be reclaimed without a Supreme Court decision favorable to Congress.

There are 126 laws passed by Congress authorizing the President to use so-called “national emergency powers.”  These laws allow U.S. Presidents to keep this nation in a perpetual national emergency. President Biden knows how to use these powers; Congress does not know how to reclaim them. Ninety-six of these laws require nothing more than the signature of the president on an emergency proclamation. Fifteen of these emergency laws merely required identifying the specific subject matter or the need for armed forces. Only thirteen of these emergency laws require a congressional declaration of emergency.

Without a statutory definition of an “emergency,” its meaning and scope is left to the vagueness of the dictionary. Merriam-Webster defines a national emergency as “a state of emergency (an unforeseen circumstance needing immediate action) resulting from a danger or threat of danger to a nation from foreign or domestic sources and usually declared to be in existence by a governmental authority.” A very subjective definition.

The troubling use of Biden’s proclamations is that they were invoked without any direct factual findings to support the actions. The public health emergency law Biden relied upon is a waiver of liability law for those assisting the federal government address Covid, i.e., protecting the pharmaceutical companies from liability. And the HEROES Act referenced loan repayment as the financial harm to students as the emergency for loan forgiveness.

The only requirement to implement emergency power is the president must specify the provision of law under which he will act. The provision cited does not need to relate to the actions taken.

The emergency law terminates on the anniversary of its declaration unless the President notifies Congress of its continuation. The only legislative option for terminating an emergency is for Congress, by joint resolution, to terminate it. Since joint resolutions must be signed by the president, their repeal is difficult since Congress needs a two-thirds majority to override a likely presidential veto. Otherwise, these emergency powers are continuously available to the president.

In addition to health emergencies, other emergency powers available to the president include the ability to control airports, industrial facilities, and any device capable of emitting electromagnetic radiation, i.e., our communications system. The authority most used is the International Emergency Economic Powers Act (“IEEPA”). It authorizes the president to invoke emergency powers relating to U.S. national security, foreign policy, or the economy, including financial and commercial transactions. Sanctions can be imposed on individuals as well as countries, including the freezing of bank accounts and the seizure of assets. While there is a requirement that the threat be related to an activity in whole or part outside of the U.S., it is easy for a president to assert a foreign connection merely by accusation. The IEEPA has been invoked 55 times.

Literally, Congress through the enactment of the National Emergencies Act gives all presidents the power to be a dictator at their chosen time. The only possible restraint is for Congress to repeal such power. While an irrelevant Congress lacks the votes to enact a law repealing a president’s emergency powers, one house of Congress opposed to the president, could “Just say No” to funding the implementation of the emergency powers.

Congress further diminishes itself by delegating war powers to the Executive

Periodically there is a howling debate over the president’s use of war powers, usually involving hostile actions against countries Congress has not declared war against. The political party out of power calls the actions unconstitutional, and introduces a never-to-pass, resolution, expressing “disapproval” so its members have media talking points. The President usually claims there to be an imminent attack on the U.S. but rarely provides evidence of any attack. While the president is the commander-in-chief of the armies, only Congress has the power… “To declare War.” Since the United States fights many undeclared wars, a discussion of how Congress abdicates this primary constitutional duty is necessary to appreciate how irrelevant Congress has become by delegating its war powers authority to the Executive.

The War Powers Act of 1973 was enacted to prevent another long but undeclared Viet Nam War situation. Under the Act, Congress grants the President, in the absence of a Declaration of War, limited powers to use force where imminent involvement in hostilities is clearly indicated by the circumstances. When the President relies on this law, he must submit to Congress a report setting forth the circumstances requiring armed forces, a statement of legal authority, and the scope and duration of the conflict. The submission of the report to Congress triggers a 60-day time limit on the use of force unless Congress extends the time.

Additionally, in 2001, Congress enacted the Authorized for Use of Military Force Against Terrorists, (“AUMF”) which allows the president to use all necessary and appropriate force against nations, persons or organizations that carried out the 2001 terrorists’ attacks against the U.S.

The dilemma for Congress is that the President, as commander-in-chief, acts as if these powers are so broad, they authorize almost any hostile action against another country.  Congress has little ability to pass a Resolution of Disapproval and, if passed, almost no ability to override a presidential veto. As a result of delegated authority under the War Powers Act, the president determines the war and Congress just salutes.

As a nation, we are 234 years from the ratification of the Constitution. At that time the U.S. has been at war for 138 years. Only five wars, totaling 32 years of war were fought under a congressional declaration of war – the War of 1812, the Mexican War, the Spanish-American War, and World Wars I and II.

Examples of abuse of the War Powers Act

President Reagan deployed troops to El Salvador but did not submit a report to Congress, or comply with a withdrawal requirement. President George H.W. Bush sent troops to the middle-east and President Clinton sent troops to former Yugoslavia. Both asserted they were acting under UN authority, and not subject to congressional time limits.

Presidents George W. Bush, Obama, and Trump relied on AUMF at least 39 times for actions in 19 countries. Lawsuits were filed to enforce the notification provisions of the War Powers Act. The courts dismissed the lawsuits as political questions to be determined by the respective branches of government.

Afghanistan, our longest undeclared war, cost the nation $2.313 trillion, approximately $300 million a day for 20 years. The death toll was significant, 2,500 U.S. military, 4,000 civilians, and 69,000 Afghan military police. Congress never used its spending power authority to cut funds off to stop the war. It’s time Congress has the courage to reclaim its War Powers.

Transforming Congress from irrelevancy to primary lawmaker

The first step Congress must take to reclaim its constitutional role in the Republic is to admit it is irrelevant and then take the steps needed to reassert it is the nation’s primary lawmaker. Its first step should be the use of its spending power to check the powers of an out-of-control Executive, no matter which political party controls the presidency.

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and former senior vice president at the U.S. Chamber of Commerce.