Charles J. Finocchiaro | Editor
“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”1 – James Madison
In the wake of the 2018 midterm elections, American national government returned to divided party control – a scenario that has been more common than not since the late 1960s. While scholarship has shown that unified party control of Congress and the presidency is often associated with less gridlock, it is no guarantee of smooth sailing. In fact, the first two years of the Trump Administration was characterized by a great deal of conflict and unmet expectations for some despite Republican ascendancy in Washington. In this issue, we consider in greater detail some of the aspects of the American federal system that lead to tensions between the branches and examine three ways in which those tensions can arise and in some cases be addressed.
The U.S. Constitution’s design sows conflict between the branches. By creating a system that endows independent branches of government with the shared powers of governance, the framers built into the system an inherent basis for conflict. Edward S. Corwin famously observed that the Constitution represents “an invitation to struggle for the privilege of directing American foreign policy.”2 That invitation is even more pronounced in the realm of domestic politics.
In our Summer 2017 issue, we looked at the early challenges facing President Trump in dealing with the 115th Congress. Some of those remain – from the difficulty in securing legislative priorities like repeal of the Affordable Care Act to the aftermath of the special counsel and related investigations. Other challenges have grown more significant, most notably Democratic congressional opposition, now amplified under a new majority in the House. The 115th Congress can claim one major legislative enactment: the Tax Cuts and Jobs Act of 2017, which narrowly passed in December 2017. Otherwise, by at least some metrics, the 115th represented a rather unremarkable session in terms of productivity.3
Many of the administration’s achievements have taken the form of non-legislative actions. In the realm of judicial appointments, in particular, the president has moved expeditiously in tandem with Senate Majority Leader Mitch McConnell to fill the large number of vacancies that had accumulated during the waning years of the Obama administration. Observers rightly directed a great deal of attention to the Supreme court confirmations of Neil Gorsuch and Brett Kavanaugh. However, another aspect of great significance – and representing an even starker contrast to earlier administrations – is the pace at which Trump has been able to fill appointments to the U.S. Court of Appeals.4 The administration’s laser focus on what amounts to effectively the court of last resort for much of the federal caseload should not be overlooked. Also noteworthy is the extent to which the administration has employed the rulemaking process to scale back government regulations – particularly those dealing with the environment, a policy area that has seen about 80 rules targeted for rollback.5
Of course, not all is well. Executive reliance on rulemaking can be a symptom of dysfunction in, or a breakdown in relations with, the legislative branch. In a similar vein, President Trump has faced a number of rebukes at the hands of Congress, particularly in areas like foreign and national security policy that typically represent favorable ground for a president. Congressional displeasure has focused on both his use of emergency powers, as in the case of the border wall, and his conduct of foreign and military policy, with Congress opposing the withdrawal of troops from Syria and Afghanistan and expressing reservations about some of the administration’s trade and tariff policies. In other cases, Congress has attempted to counter the president by voicing support for NATO and withdrawing support for Saudi Arabia’s war in Yemen after the killing of journalist Jamal Khashoggi. Additionally, for all of his successes in judicial appointments, the president has had much more difficulty nominating and retaining executive branch officials. In some departments, the vacancy rate in key positions still exceeds 50 percent and hundreds of nominations remain to be made or confirmed by the Senate.6 While the president’s success rate on higher-level judicial nominations has outpaced that of his predecessors, it falls well below their pace in terms of executive branch appointments.7 And congressional oversight – while quiet with a friendly party controlling both chambers of Congress for the past two years – is sure to ramp up now. As Douglas Kriner and Eric Schickler discuss in their excellent recent book on congressional investigations of the president over time, the key predictor of oversight activity is divided government, and oversight gives Congress a tool with which to both bring about policy goals and rein in a president even when legislative action may be difficult to accomplish.8
Some of these same tensions are reflected in the public’s outlook toward government after the recent midterm elections. Expectations that either side will be able to enact their policy priorities are low. More than 60 percent of respondents to a recent Pew Research Center poll believe that both Donald Trump and Democratic leaders in Congress will fail in this regard.
Similarly, nearly equal numbers expect the relationship between Republicans and Democrats to deteriorate or hold steady over the next year, with just nine percent optimistic that things will improve.9
In this issue of Extensions, three noted scholars of interbranch politics take up issues involving the interplay between the institutions of American federal government. First, Rachel Augustine Potter examines how bureaucrats take advantage of the procedural politics of agency rulemaking in order to influence the nature of regulatory outcomes. In the second article, Louis Fisher describes how “errors” on the part of the Supreme Court can have the effect of expanding presidential power and advocates a model whereby the Court would come to acknowledge decisions that it later finds to be defective. Finally, Jason MacDonald presents new data on 30 years of congressional oversight, demonstrating in the process the increasingly partisan tenor of a key House subcommittee over time and discussing its implications for contemporary politics. These authors together shed a great deal of light on the political moment in which we find ourselves, and offer insights that help to illuminate some of the paths forward that we are likely to observe.
Charles J. Finocchiaro is the associate director of the Carl Albert Congressional Research and Studies Center and an associate professor in the Department of Political Science at the University of Oklahoma. His research and teaching interests span the fields of American politics and research methodology, with a particular focus on the development and organization of American political institutions (primarily the U.S. Congress) and congressional elections. His ongoing work centers on the transformation of the U.S. House and congressional leadership during the late 19th and early 20th centuries.
- James Madison, Federalist No. 51.
- Edward S. Corwin, The President: Office and Powers, 1787-1984, 5th edition (New York: NYU Press, 1984), 201.
- “A productivity scorecard for the 115th Congress: More laws than before, but not more substance,” Pew Research Center, January 25, 2019.
- “How Trump is shifting the most important courts in the country,” Washington Post, September 4, 2018.
- Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, “78 Environmental Rules on the Way Out Under Trump,” New York Times, December 28, 2018. See Brookings for a detailed tracker of deregulation across the executive branch.
- “Tracking how many key positions Trump has filled so far,” Washington Post, March 4, 2019.
- “Appointments,” White House Transition Project, accessed March 4, 2019.
- Douglas L. Kriner and Eric Schickler, Investigating the President: Congressional Checks on Presidential Power, (Princeton, NJ :Princeton University Press, 2016).
- “Public Expects Gridlock, Deeper Divisions With Changed Political Landscape,” Pew Research Center, November 15, 2018.