Is Congress the least powerful branch of government?

‘Congress has become the least powerful branch of government.’ Discuss

When the Founding Fathers wrote the Constitution they arguably intended Congress to be the most powerful branch of government, however, in recent times Congress has become increasingly weakened. Congress’s weaknesses are most evident from the fact that they do not have the ability to set the political agenda, the President and judiciary have increasingly become ‘imperial’ and Congress has arguably lost a core constitutional role of declaring war, all of which have produced this image of a weak legislature.

Congress is the least powerful branch because the President is inherently constitutionally more powerful through his ability to set the political agenda through the state of the union address. Standing at the bull pulpit, the President effectively orders Congress what to do – in his 2015 state of the union address the President told Congress to push forward legislation eliminating loopholes within the campaign finance system and focus on increasing national security and the fight against terror in the Middle East. As a result, much of Congress’s work over the year is dedicated to completing the legislation proposed by the President. This lack of independence as a legislature makes Congress appear like a weak body. However, due to the separation of powers Congress remains strong, the executive has no control over Congress and he merely ‘recommends’ legislation to Congress rather than actually forces them to act on his behalf. In the last few years Congress has become increasingly obstructionist and thus, the President’s agenda illustrated in the state of the union has not been followed. This was seen in the 2013 state of the union address whereby Obama recommended introducing restrictions on gun laws (following the Sandy Hook massacre in December 2012), in which although a bill did appear in Congress (the Manchin-Toomey bill), it was blocked by Congress therefore showing how Congress does not always act towards the Presidents wishes. Regardless, if Congress are not following the President’s agenda on a specific issue, such as comprehensive immigration reform, the President is free to circumvent Congress through executive orders as Obama did so in November 2014, therefore weakening Congress.

In recent years Congress has become very polarised as a result of, debatably, the Tea Party Movement, which has acted as a polarising force in Congress, and so the last few years has been a story of continuous gridlock. So, Congress is the least powerful branch, not because of constitutional limits or other branches, but because it has weakened itself through all its infighting as seen from the 2013 government shutdown, making 2013 the least productive legislative year since 1948 (clearly Congress isn’t even carrying out its legislative role properly due to its continuous gridlock). It’s got to a point whereby the President has had to take matters into his own hands through executive orders, bypassing Congress and ruling alone. In 2014, for instance, President Obama initiated an executive order seeking to help five million illegal immigrants from deportation. The President cannot rule alone even if Congress is in deadlock, he remains heavily reliant on Congress for the budget and funds for his executive order. This year Congress in fact nearly defunded Obama’s executive order after a bill almost failed to pass in Congress renewing funding for the Department of Homeland Security. Moreover, even if Congress is polarised, it still continues to be powerful through its power of investigation whereby Congressional committees effectively scrutinize government agencies and departments. This was perhaps most clearly seen with the CIA torture report released by the Senate Intelligence Committee recently. However, the struggle Congress has to go through to pass legislation further emphasises the fact that it has become less powerful, they weaken themselves by all their infighting.

Moreover, the President can effectively veto any laws passed by Congress. In his 2015 state of the union address Obama threatened to use presidential vetoes if Congress attempts to repeal Obamacare or prevent things like immigration reform bills has truly made Congress appear weak. Obama has since then vetoed two items passed by Congress, the Keystone Pipeline Approval Act in February and the National Labor Relations Board Union Election Rule in March. Congress’s most important function is to pass legislation, but clearly this function cannot be carried out if the President is vetoing legislation, therefore limiting Congress’s power. However, Congress possess constitutional checks on the President such as its ability to override Presidential vetoes by a two third majority in both houses, for instance, four of Bill Clinton’s vetoes (out of 12) were vetoed. So, Congress’s ability to override a Presidential veto still means they’re a powerful body. But, in a time of gridlock and increasing polarisation Congress rarely ever sustains enough votes to actually override a presidential veto as seen by the fact that none of Obama’s four existing vetoes have been overridden yet.

Congress is the least powerful branch because it has lost one of its core constitutional powers: the power to declare war. Although this power does still technically exist, it has not been utilised by Congress since 1941 when war was declared on Japan and the President has arguably exploited his role as Commander In-Chief to overpower Congress in this area of foreign policy. Since 1941 several wars have taken place such as the Korean, Vietnam, Gulf and Iraq war, however, not once has Congress used its constitutional power. Instead, the President has been at the forefront of foreign policy initiating wars. Congress’ inability to play a sufficient role in foreign policy truly makes it look like the least powerful branch. However, it’s unlikely a President will ever go to war without the approval of Congress. So, although Congress has not used its constitutional power to declare war – it has still played a role in declaring war on Iraq in 2002. Also, earlier this year Obama had to submit a report to the Senate requesting approval for further action against the growing threat of ISIS in the Middle East, also using its power of the purse Congress is in charge of assigning funding to all the departments involved in the area of foreign policy. So, Congress still contuse to play a vital role in foreign policy despite not using its power. Despite granting approval, Congress still seems to be weak because it appears to have lost a key constitutional power today the roles have reversed from Congress initiating and the President supervising to Congress supervising from the back seat while the President initiates wars.

The Supreme Court has become increasingly powerful as a result of their self-granted power of judicial review. Judicial review allows the Supreme Court to be able to exercise a lot of control over the legislature by being able to strike down their legislation and ruling it unconstitutional. A recent example was during the U.S v. Windsor case when the Supreme Court struck down the Defence of the Marriage Act (DOMA). This ability of the Supreme Court to dismiss Congress’ legislation looks as though the Supreme Court is acting as a quasi-legislative body, in which they are ‘legislating from the bench’ which is a function of Congress, not the Supreme Court. On the other hand, Congress also posses considerable checks on the Supreme Court such as its ability to launch impeachments and introduce new legislation or constitutional amendments overruling the Supreme Court’s decision. Also, the Supreme Court cannot freely flaunt about its power of judicial review due to a lack of initiation power and therefore, Congress in fact remains a powerful body. However, judicial review remains effectively an uncheckable power, giving the impression of an ‘imperial judiciary’ and making Congress look like a weak branch.

Finally, Congressmen are more focused on local concerns in their state or district among their constituents rather than the bigger picture. As Tip O’Neill famously said, ‘all politics is local’ and therefore Congress weakens itself by being preoccupied more with local issues rather than wider national issues like reducing the government debt. This is also relates to the issue of career politicians in Washington who only seek reelection rather than doing their job properly, which is arguably most prominently seen through Congress’s tendency to attach earmarks to bills. For instance, Jim Moran’s earmarks total up to $36.5 million and other earmarks have gone to irrelevant projects such as the ‘Alaska bridge to nowhere’. This inability for Congress to focus on the national bigger picture and only be concerned with local issues has produced an image of a weak and dysfunctional Congress. However, Congress can still unite around a single shared issue and work in the national interests as demonstrated by the 1994 Contract with America, Six for 06 agenda in 2006, 2010 Pledge to America and arguably the 2014 midterm elections which were the most nationalised ever. Although this rarely influences their effectiveness, it’s a fact that this rarely happens and the agenda is more set by the President and the issue of career politicians continues to have its corrosive effects on Congress.

As demonstrated above, Congress is indeed the least powerful branch of government. Through all its infighting and the existence of career politicians Congress has generated this image of itself as being dysfunctional. As illustrated above, it may be the case that Congress is inherently weak with such a powerful presidential role who has many powers such as his ability to overridden vetoes and act as commander in chief, or the supreme court’s ability to strike down congressional legislation. Overall, Congress is indeed the least powerful branch and comes as a consequence of the rise of an ‘imperial’ presidency and judiciary.