Congressional Dysfunction and Presidential Power

On at least three major issues President Obama has now attempted to bypass a dysfunctional congress.

  1. Immigration
  2. Marijuana
  3. Economic Growth

In last night’s State of the Union, Obama pledged to act on the economy without relying on congressional approval. On immigration and marijuana the President has announced prosecutorial discretion, declaring that he would not prosecute certain immigrants (basically the DREAM Act) and would not prosecute certain drug crimes in cases where state law conflicted with federal law.

Now, in all three cases I agree with the policies Obama has undertaken. And I’m fully aware that Congress was not going to act on any of them. Nonetheless, the expansion of executive power is troubling. Raising the wages of federal workers is clearly a legitimate executive function, and I’m not sure what other concrete actions Obama plans on the economy other than begging large corporations to play nice (and there was a lot of that in last night’s speech). The real trouble is the use of prosecutorial discretion on such a wide scale as to essentially be a decision not to enforce certain aspects of the law.

There are some limits here, as any crime that clearly harms another individual can be prosecuted by the individual who has been harmed. It’s only in cases where the only party with sufficient standing to prosecute is the federal government (cases like immigration and drug policy) that the executive can simply decide against prosecuting.

This expansion of executive power is a symptom of a problem with the institution of Congress. Right now, Congress (1) can’t act, and (2) can’t stop the executive from acting. The rules of congress weren’t made to handle such extreme ideological polarization. This chart, from Nate Silver, is my favorite visualization of our increasingly polarized congress, although the history of polarization goes back to well before 1992. (See ‘A Brief History of Congressional Polarization‘)

Silver chart

The President used to be able to choose not to spend money that Congress authorized. So if the President didn’t like a program or just thought overall spending was to high, he could unilaterally decide not to fund it. This was called impoundment and became illegal in 1974, after Congress judged that President Nixon was abusing it. That Congressional action was possible because both chambers of Congress were controlled by Democrats at the time, and so had no problem with reigning in the executive power of a Republican. I suspect that if Congress were every fully controlled by a party opposed to the current executive they would reign in prosecutorial discretion as well.

Now, this implies that we could fix the problem with an overwhelming shift in Congress to one party or the other. This is unlikely to happen. Even if public opinion shifts, the chances are the parties will shift with it. The other solution is to change the institutional structure of congress. Right now, most  voters have no idea who to praise or blame for things that are going well or going badly. This is a major problem because it destroys accountability. Our system of government was intentionally designed to slow down action, but that also left voters unable to tell who is actually acting (or failing to act). A system that instead gave power to one party or governing coalition of parties, and then allowed voters to judge that party’s actions in the next election would actually be much more accountable to the people than our current system of dysfunctional congressional gridlock leading to executive action.



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