Over the past few weeks, the Trump administration has continued its aggressive expansion of executive power. It has purged federal officials, firing all 22 members of an independent board overseeing the National Science Foundation; it has argued that both the Presidential Records Act and the War Powers Act represent unconstitutional constraints on executive power; and it has continued to defy lower court orders across a range of issues, including mass layoffs, deportations, and spending cuts. During this same period, the Supreme Court eviscerated what remains of the Voting Rights Act, overriding both the clear mandates of the Reconstruction Amendments and the will of Congress.
These moves are the latest instances of what Jamelle Bouie has rightly termed the “anti-constitutionalism” of the Trumpist Executive branch and the Roberts Court. Although such actions are often couched in constitutional rhetoric—like the administration’s account of unitary executive theory, or Samuel Alito’s bizarre inversion of Equal Protection—they evince a deep hostility to the very idea of constitutionalism. In particular, they reject the notion that we the people ought to govern ourselves through a representative legislature, and the principle that arbitrary concentrations of power must be constrained. These are not power-grabs merely for power’s sake; they are power grabs meant to enable a specifically reactionary agenda seeking to rollback—and render impossible—advances toward racial, gender, and economic equality.
How should we imagine and work toward a future democratic polity that takes seriously these seizures of power? What would it take to undo and prevent such abuses in the future? In a recent post, Beau Baumann issued a compelling and generative call for LPE scholars to forge more explicit and robust answers to these questions. For Baumann, any satisfactory answer must revolve around the principle of Congressional primacy; only Congress has the democratic legitimacy and authority to decisively respond to the current crisis, unlike the increasingly imperial Executive or the supremacist Supreme Court. And by implication, Baumann suggests, scholars and advocates should ask hard questions about their own preferences for judicial or executive-driven policy change.
As a blue-sky vision for democracy, I share the commitment to legislative primacy. The legislative power is articulated in Article I of the Constitution for a reason—the legislature has the primary claim to democratic sovereignty, above and prior to both the executive and the judiciary. A democracy cannot survive long if its legislature is inert, captured, or incapacitated; temporary reliance on executive or judicial routes to policy will only get us so far. And indeed, the combination of an imperial presidency and an imperial Supreme Court underscore how much of our current political crisis stems from the evisceration of Article I itself.
While this commitment to legislative primacy gives us an orienting north star, it is not the end of the inquiry. In addition to identifying a shared vision for a democratic future, we also need to be clear about the current configurations of power and institutional structures that stand in the way of such a vision. These two tasks together should inform our long-term and short-term thinking about institutional design and pathways to durable transformative institutional change. Applied to the question of legislative primacy, I believe there are three key points we must keep in mind.
1. Responding to the authoritarian ascendance requires addressing underlying configurations of power—which requires both executive and legislative tools.
Ascendant authoritarianism in the United States is not due merely to congressional weakness. Congress’ weakness—and the shocking power of the authoritarian coalition today—are both products of deeper disparities of power, from concentrated wealth and private power to the configuration of organized interests, to the hollowing out of the major parties themselves. Addressing those disparities will require both legislative and executive tools, particularly in the nearer term, if and when pro-democracy coalitions gain footholds of governing power. Configurations of political and economic power flow through and interact with our institutional structures. While the expansion of executive and judicial power has been a fundamental driver in bringing about the current crisis, so have the concentration and increased partisan valence of concentrated wealth and corporate power, the organized and vociferous campaign by key interests to undo progress towards racial and gender equality, and the weakness of our party system writ large.
The implication, then, is that reconstructing a durable, inclusive, and effective democracy will require rebalancing those pathologies of power in some form. That will require not just a revival of Congress, but a slew of policies and interventions that can rein in private power, secure basic civil rights protections and systems for social and economic inclusion, and much more. Advancing such policies will necessarily require both legislative and executive tools, particularly in the short term while we are still working with an imperfect, hobbled, and still significantly co-opted legislature—and while the configurations of private power and reactionary coalitions that enabled this authoritarian moment continue to exert significant power and influence.
2. Congressional primacy still requires administration—and a serious reimagining of the federal administrative bureaucracy.
Second, in any long-term vision of Congressional primacy, administration will still play a significant role. This is not to diminish at all the importance of a focus on Article I, but it is an important nuance to that vision. In a world of genuine legislative primacy, capacity, and responsiveness, laws could be more quickly updated to address emerging public problems, taking some of the pressure off regulatory agencies to act as policy innovators and to work with out-of-date or ambiguous statutory mandates. But legislation alone can carry neither the normative burden of democratic deliberation and policy legitimation, nor the practical burden of designing and implementing complex public policy all the way to the ground-level.
Legislation cannot provide perfectly precise and specified policy prescriptions, and domain-specific agencies and experts will always be needed to refine and execute policy directives. Further, in this work of implementation, some forms of democratic deliberation and contestation remain essential; arguably, administrative structures offer the possibility for modes of structured democratic engagement that could be importantly different from electoral and legislative politics, such as through more creative co-governance models—incorporating participatory decision-making and interest-representation in regulatory decision-making and regulatory enforcement as ways of building bottom-up power.
Think, for example, of models of tripartite governance incorporated into regulatory policymaking; or the engagement of grassroots organizations in monitoring and enforcing regulatory policies. Indeed, as Greg Baltz argued in these pages last week, public administrative hearings, such as those offered by NYC’s Rent Guidelines Board, offer an important platform for political mobilization and movement-building. The same is true at the federal level, as accounts of social movements and the administrative state underscore.
In the nearer term, it will be important for Congress to play a bigger and more creative role in remaking the administrative state: building new capacities and agencies that are fit for the modern era, and remaking administrative structures that have been central to the autocratic abuse of power or more chronic forms of administrative subordination.
3. Congressional primacy requires structural reforms—including to Congress itself.
For Congress to truly be the effective and empowered seat of popular sovereignty, Congress must itself be structurally reformed in significant ways—including through reforms to our electoral systems. There’s no question that current and future Congresses can and should do more to assert legislative prerogative. But it is not enough for Congress to merely “do more.” Indeed, in a world of rampant and escalating inequality, concentrations of wealth, massive oligarchic and corporate expenditure on elections, and now accelerated voter suppression and gerrymandering with the demise of the Voting Rights Act, the Congress of today is hardly the Congress of an aspirational democratic future. We must fight for structural reforms that will make Congress both more capable and more responsive.
This means expanding the resources, staffing, and in-house capacity of Congress to better enable it to act in ways that can go toe-to-toe with courts and executive branch agencies. But it also means advancing structural democracy reforms that ensure that Congress is in fact representative of and responsive to all of us, and not merely the skewed product of a restricted franchise and rigged electoral system. More expansively, we should contemplate how to make Congress itself more representative—through proposals like proportional representation, House expansion, and neutralizing the undemocratic, counter-majoritarian features of the Senate.
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Ultimately, Baumann is right to push on this discussion. It is not enough to merely develop good policies, or to presume that the next pro-democracy administration can leverage the current institutional structure without also trying to radically transform it. Such an approach will yield at best only temporary reprieve from the continued escalation of authoritarian and oligarchic dangers. Ultimately, an effective reconstructive politics requires both a long-term vision of more responsive and durable democratic institutions that moves decisively away from juristocratic or monarchical approaches to policy change, and a realism about the need to address the underlying configurations of economic and political power that enabled this current crisis with every tool available. Holding both commitments at the same time will not be easy, and will demand tradeoffs and nuanced approaches to strategy. But anything less will be insufficient to chart a pathway forward.
