Politico reports: “Sen. Tom Cotton and Rep. Trey Gowdy on Tuesday made a forceful pitch for Congress to claw back some control from the White House under the Trump presidency, framing it as a time-sensitive opportunity to reset the balance of power.” This echoes Sen. Mike Lee’s (R-Utah) Article I Project, rolled out in February, which sought to push Congress to reclaim the power of the purse; address legislative “cliffs” (stop the rush to pass funding and other legislation at the 11th hour without adequate review); restore authority over regulations and regulators; and curtail executive discretion.
You have to wonder how serious these conservatives are, however, when Congress is already so compliant — before Donald Trump is even sworn in. Let’s consider three areas in which Congress is refusing to challenge executive overreach.
First, Republicans have been utterly silent on the president-elect’s glaring conflicts of interest and specifically his apparent willingness to flout the Emoluments Clause. Will they demand he liquidate his assets and put them in a true blind trust? Why haven’t they yet objected when, for example, Ivanka Trump sits in on a meeting with Japan’s prime minister as she is concluding a major deal with a Japanese company funded by that country’s development bank? If Congress will not enforce an explicit Article II limit on the president (the ban on receipt of monies or items of value from foreign governments), there is little to suggest that Congress will seek to restrain the executive on issues that are not nearly so black and white.
Second, not only is the president-elect bent on interfering in the private sector by means of handing out tax goodies and threatening American companies, but he also is doing so entirely independent of any congressional oversight or authorization. We have no way of knowing, for example, whether Trump’s tweet threatening to cancel a Boeing contract for a new Air Force One was based on legitimate policy concerns or because the company’s CEO modestly criticized his trade approach. On one hand, House Speaker Paul D. Ryan (R-Wis.) decries crony capitalism like the U.S. Export-Import Bank; on the other hand, he cheers the Carrier deal. Perhaps he should listen to former treasury secretary Lawrence Summers, who argues with regard to Carrier:
This was more of a mugging than a bribe. The tax incentives offered by Indiana total $7 million over 10 years, or less than $1,000 per job-year. Incentives at this level would be standard in any business location decision. So, given the stakes involved, the decision was surely based on a reasonable judgment by United Technologies (the parent company of Carrier) that it did not want to be on the wrong side of the incoming president.
Summers adds that while there are legitimate issues about balancing profits and workers’ interests, “this should not cause any confusion about cases of presidential extortion of individual companies for symbolic political gain. Such actions are dangerous, and the more so when they generate popular acclaim.” We should add that acclaim coming from lawmakers who insist they believe in the rule of law and limits on executive discretion is blatantly hypocritical.
Third, part and parcel of recent executive overreach has been the gigantic expansion of White House staff and the diminution of power for Cabinet departments whose officials are subject to confirmation, subpoena and other oversight. Unfortunately, we see no sign that Congress wants to use its oversight to investigate national security adviser-designee Michael T. Flynn’s alleged failure to register under the Foreign Agents Registration Act or his purported failure to disclose foreign clients before taking an intelligence briefing. The national security adviser may not be subject to confirmation, but surely violation of federal statutes and potential security breaches deserve congressional scrutiny. (That at least was the stance Republicans took when Hillary Clinton was the subject of allegations.) Moreover, we will see whether Congress actually is intent on chopping the National Security Council — and the rest of the White House staff — down to size so that policymaking and execution remain the province of officials who are subject to Senate confirmation.
In short, put me down as skeptical that Congress will show any spine when it comes to nettlesome issues of Trump’s executive overreach. Lee’s office declined to comment on the issues we raised. Cotton’s office has not responded to our request for comment. The gap between rhetoric and action will persist, we fear.