The Legislature
The People’s Ordained Body of Governance
By Mark Shubert
In a well regulated Democratic-Republic the legislature is the main or supreme branch from which the other branches receive their power and legitimacy.
This was more so the case in the early history of the US government, however, regrettably the legislature is delegating more governance as the vines of the other two branches are leeching responsibility from it. When the Supreme Court was formed the first court, the Jay Court, did not know exactly what their duties entailed and so they waited for Congress to pass the Judiciary Acts during the Washington Administration which granted the Supreme Court with specific powers and structure that the Constitution did not enumerate. The same may be said about the executive branch since any appointments of judges, ambassadors, and cabinet officers need approval from the Senate and any bills proposed by the President need to pass Congress. Any officer of either subordinate branches including the Chief Justice and the President may be impeached and convicted by the legislature exclusively; neither the executive nor judicial branches can impeach or remove any Congressor. I use the term Congressor instead of saying both congressmen and congresswomen.
During Washington’s precedent setting presidential administration, he deferred to Congress, specifically the Senate for most of his decisions. The Indian wars in the Ohio River Valley and in Georgia, the passing of a liquor tax and subsequent Whiskey Rebellion, the formation of post roads, the establishment of a national bank, determining immigration and naturalization policy, setting the location of the new capitol, regulating trade and the militias, determining the structure and powers of the judicial branch, and many more issues were overseen and managed almost directly by Congress while Washington merely executed the orders of the legislature and gave some advice during the annual state of the union addresses. There were few issues where the President took initiative in affecting policies, in fact Washington would only sign eight executive orders during his eight year tenure as President and all but one were minor. Also these weren’t called executive orders back then, but they essentially are so I do not see much issue calling them that. The one notable executive order of Washington was his proclamation of neutrality which he defended as only a statement of the state of the union, not a directive against Congress’s power to declare war or approve peace. Now, the president signs dozens or even a hundred in their first week or so in office. There was more national unity and consensus in the Early Republic other than a few issues like the aforementioned neutrality crisis, and so there was less of a reason for the President to initiate policies. There were also few departments and virtually no agencies to enforce their own policies so the legislature had more direct and unchallenged power. This includes state legislatures not just the federal government since Federalism was more common and included more issues than today.
Although not enumerated it is heavily implied that the legislature is to be the ordained representative of our polity while the two subordinate branches are designed for necessary and proper purposes of enforcement and justice. As John Adams put it in his essay Thoughts on Government, the legislature is not capable of the three duties of government all at once and so more branches are requisite for a sound and effective government. The Constitution is the highest power of our polity but even it may be amended by the legislature alone and the other branches are not included in that process. Yes, the state legislatures get involved as well which goes to show the supremacy of the legislature as a body that represents the people since the Constitution is established by “We the People” without it actually being established via referendum but via representatives. Judges and executives play no part in the amending process, not even as an honorable rubber stamp.
The branches were not made to be coequal but instead coordinate under the direction of the legislature. Today, the executive and judicial branches, mostly the former, have assumed more legislative powers. There are more executive orders signed, more departments and agencies that can hardly be supervised or audited by Congress, and worse of all there is a passiveness that allows the President to get entangled in conflicts abroad; it is Congress, specifically the Senate, that has exclusive power to declare war and the last time the Senate voted to declare war was against Italy and Germany on December 11, 1941, now I do not know if you know this but we have been in one or two “wars” since then. The Korean War, Vietnam War, all wars in the Middle East, sending troops to Africa, fighting the Lybians and bombing Serbia. None of these are official wars, but instead “conflicts.” Now these are weird examples because on the one hand the executive is “circumventing” the legislature but with the legislature’s permission since all of these conflicts required resolutions to be passed for example the Gulf of Tonkin Resolution which officially unofficially started the Vietnam conflict. So Congress is handicapping itself to give the executive more power. The reason for this is because Senators find it hard to get approval from the people to start a war and could lose their voter base so they put the responsibility on the President who isn’t elected by the people. Now, I do not believe that the government should be doing things that violate the will of the people; the people should not be forced into conflict they do not consent to and in this instance of conflict management there are two ways to fix it. The first is to prevent Congress from delegating authority to the President by requiring declarations of war and abolishing “resolutions of conflict” for all military actions that involve violence; and the second is to have the President be directly elected by the people, I personally support both.
Money, which is supposed to be strictly managed by the House of Representatives, is being reallocated from allocated programs to fund Presidential projects without Congressional approval and without condemnation from the Supreme Court even though these branches are supposed to check and balance each other. Now to be clear, all of these behaviors have been tolerated by Congress since they could step in and prevent them from happening in the first place so when I say “without Congressional approval” what I mean is that Congress does not go out of its way to shut down the actions of the President.
However, when you look at how Congress is run it is becoming more of a rubber stamp. Senators especially are in more committees and subcommittees than they could possibly attend all meetings for. Their workload is too much for them to handle and because of this the ever expanding executive branch is assuming more responsibilities and with greater responsibilities comes greater power. This assumption of more “necessary and proper” authority was not done by an ambitious and nefarious executive but due to the detrimental inefficiencies of the legislature. In summation, Congress cannot do its job but someone has to and that someone is the executive so the less Congress is able to do on their own either from apathy or incapability the more the executive does.
To return to the legislature their power that has been delegated to the other branches requires reform that deals with the issue of congressional inefficiency & responsibility. Here are some amendments that I propose in regards to this issue. First would be to increase the size of Congress. As our political system and problems become more numerous and complex, Congress needs to expand to have the human capital necessary to manage such changes. The executive has changed and adapted via expansion of departments and agencies while Congress has remained stagnant in the number of seats since the 1920s. If we intend on moving the powers of the executive over to the legislature, Congress needs the manpower to reassume those responsibilities to maintain efficiency. I suggest we increase the size of the House to 888 and the senate should be increased to three senators per state with one seat up for election every two years. This will increase manpower and decrease the workload per congressor so that committees would be properly filled, it would also decrease the cost to run for a house seat since more representatives means smaller districts which means fewer constituents and less money required to run a campaign. Each congressor would be more representative of the people since there would be less constituents but also because the decrease in cost to campaign would lower a barrier to entry for more average Americans to run for office. This would also have the added bonus of increasing the cost of lobbying since corporations would need to lobby more congressors in order to achieve the same amount of influence in Congress; tighter restrictions on lobbying should also be passed for example repealing the Citizens United case which would allow for regulations on companies promoting or denouncing politicians close to the elections but also policy not written by politicians themselves should be announced to the public along with sources on who exactly wrote that policy. There is the criticism that the decrease in cost of campaigning will also decrease the cost of lobbying but this isn’t the case since more special interests that don’t have as much money will be able to compete and this competition will drive the lobbying costs back up despite the decrease in the cost of campaigning. Not only will there be more competition between special interests, but if the decrease in campaign costs is significant enough, then lobbyists who fund campaigns might not be needed at all since revenue via constituent donations would cover the costs. The increase in Congressors would allow for more hearings from experts and corporations or activists proposing policy which should be live streamed so that the people know the source of policy proposals.
Other than increasing the manpower of Congress there are some procedural reforms to consider. The House should focus on domestic and money bills while the Senate should focus on administrative and foreign policy. These specialties are already hinted or implied in the Constitution as the Senate is enumerated power over administrative policy such as approving appointments of Judges, Cabinet members, and impeachment trials along with foreign policy consisting in approving ambassador appointments, treaties, and declarations of war. The House, due to their short terms in office, must appease voters quickly which is done via domestic policy since the average American mostly only cares about domestic issues, and the Constitution enumerated that money bills originate from the House.
An amendment to solidify this legislative specialization might look like this; any domestic or money bill starting in the House would need a majority to pass in the House while requiring a majority for the Senate to veto or block. I guess for either house it wouldn't be a veto it would be a vetimus. So a bill originating in its specialized House would have the same process as it is now but it will become law on its own unless the other house has a majority to prevent it from becoming law. If for example, a domestic bill originates in the Senate, not its specialized house, then the House of Representatives would need to approve it with majority before it can become law, which is the current due process. To reiterate, the House should focus on domestic and economic policy while the Senate should focus on administrative and foreign policy, but they can still have a say over the other if a majority prevents a bill from passing instead of requiring a majority to pass a bill.
Regarding Executive authority there needs to be more oversight actions done, any policy changes either from the president via executive orders or by the departments or agencies themselves should require approval from Congress. One way to do this is to have a period of time from when an executive order is made where Congress can vetimus the order. So the order will go into effect immediately but could be recalled or vetimus by Congress. These could be called Post Actus Vetimus or something similar in Latin. This would require a proactive Congress, it has been their passive habit that has given or allowed the executive branch reason to assume more “necessary and proper” power. This is unhealthy for a democratic-republic since no executive officers are elected by the people making their representative legitimacy sourced in Congress. The less Congress oversees and actively approves programs and policies of the executive means that subordinate branches are only virtually representing the people. I made a prior video on why virtual representation is a bad thing so check that out.
In summation, the legislature is the ordained body of governance in our polity and we need amendments to secure that supremacy above the other two subordinate branches. These amendments include expanding congress, moving responsibilities that have been assumed by the executive to congress, and to increase efficiency and representation of the legislature.