9 min read

The incredible shrinking Congress

Congress has banished itself to the sidelines of important national debates, leaving the executive and judicial branches to do its legislating for them.
The incredible shrinking Congress
(Image by DALL-E)

Good morning! It’s Thursday, July 6, 2023. The 2024 elections are 488 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

The Fourth of July always offers a good opportunity to praise, criticize, revisit, and struggle with the grand political experiment we’ve been running here in America for the past 247 years.

This year, much of that revisiting seems to be centered around the branch of government that’s often been the most overlooked throughout our nation’s history: the judiciary.

That shouldn’t be surprising, considering the Supreme Court just finished what has become its annual late-June ritual of handing down its most anticipated rulings. In the past two years, those end-of-term opinions have included consequential decisions upending the status quo on abortion, affirmative action, gun control, and environmental regulation, among other issues.

Depending on who you ask, the court’s latest actions either reverse decades of judicial activism, or should be considered new acts of judicial activism themselves. In both camps sit critics who — at various times — have accused the court of forgetting its place in our constitutional system, acting more like a legislature than a judiciary.

In the past few days, it is has been liberals making that case passionately. In the opinion pages of the Washington Post, columnist Jennifer Rubin — formerly a conservative, now a favorite of the Biden White House — wrote this week that the Supreme Court is subverting the long-held principle, key to our system of self-government, that “elected leaders (not unelected judges) make policy decisions for which they are held accountable.”

“Who died and made the Supreme Court a Congress?” was the title of a recent op-ed by MSNBC anchor Mehdi Hasan on the network’s website. “An elected, and Democratic-controlled, Congress can write and pass a progressive law,” Hasan bemoaned, “but an unelected and very conservative Supreme Court can just rewrite it.”

There may well be cases to which this criticism applies, but I was struck by the fact that both Rubin and Hasan used the court’s decision striking down President Biden’s student loan debt cancellation plan as a prime example. After all, that was not quite a case in which Congress wrote and passed a law, and then the Supreme Court rewrote it.

I don’t want to get bogged down here in a discussion of whether or not student loan debt cancellation is a desirable policy. (It’s important to separate one’s approval or disapproval of a policy outcome from whether or not it’s legally permissible.) I also don’t want to litigate whether Biden’s plan comported in literal terms with the HEROES Act of 2003, his cited legal justification.

The 2003 law allows the Secretary of Education to “waive or modify” provisions of federal student loan law “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” Both sides of this debate have offered persuasive arguments as to whether the Biden Education Department’s actions fit under the definition of “waive or modify,” and I don’t plan to offer a position.

Instead, let’s consider a more fundamental question, not about the role of the Supreme Court — but about the role of Congress. Hasan and Rubin argue that the Supreme Court is acting as a Congress in its student loan decision; conservatives respond that it is the executive branch doing the same thing. So, my question is: why isn’t Congress acting as a Congress? Does this process really represent the role we want our legislators to be playing in policy debates of national importance?

Because whether or not you think Biden’s plan was technically in compliance with the 2003 HEROES law, it would be a stretch to say that the expansive and expensive program — estimated to cost $400 billion — had the express approval of the branch of government supposedly blessed with the “power of the purse.”

If you read the 2003 HEROES Act (and its 9/11-era precursor), it is fairly clear — even if its text can be applied more broadly — that its authors envisioned it as aiding military servicemembers with their student loans in wartime. The 2003 law begins by listing six congressional “findings,” all of which relate to military personnel and national security. “There is no more important cause for this Congress than to support the members of the United States military and provide assistance with their transition into and out of active duty and active service,” the law says, by way of explanation for its enactment. (These veterans are the law’s eponymous “heroes.”)

Four years later, a 2007 law made the HEROES Act permanent — with the goal, it said, of “allowing the Secretary of Education to continue providing assistance to active duty service members and other affected individuals and their families.” I think it’s possible to make a case that Covid-19 victims could be classified as “other affected individuals,” while also acknowledging that it’s a vague phrase to hang a $400 billion hat on.

Luckily, we don’t need to rely on the 2003 Congress to deduce the opinion of the legislative branch. The 2023 Congress has made themselves plenty clear: they did not want Biden’s student loans plan to take effect.

The House voted 218-203 in favor of a disapproval resolution to cancel the plan; the Senate voted 52-46 for the same measure. Two Democrats supported the resolution in each chamber. Notably, this is not a case in which the Senate filibuster is relevant: not even a simple majority of senators supported Biden’s student loans plan, due to the opposition of Sens. Joe Manchin (D-WV), Kyrsten Sinema (I-AZ), and Jon Tester (D-MT).

Again, you can think Biden’s student loans plan is good policy and even technically legal, but — if only as an ideal — shouldn’t we aspire to major changes in public policy receiving approval from our nation’s legislators?

Congress has been reduced to a bit player in the student loans debate, and in our national debates around other issues, which have increasingly become conversations between the judiciary and the executive (immigration, environmental regulation), the judiciary and the states (gun laws), and the judiciary and private actors (affirmative action).

The Founders envisioned such policy debates as vibrant interbranch conversations, with Congress starting the process and playing arguably the most important role. There’s a reason Congress was designed in Article I of the Constitution. “In republican government, the legislative authority necessarily predominates,” James Madison wrote in Federalist No. 51.

In Federalist No. 47, Madison quotes the French philosopher Montesquieu: “There can be no liberty where the legislative and executive powers are united in the same person.”

The Supreme Court is not, as it is often portrayed today, untouchable. If lawmakers are unhappy about a Supreme Court decision — as many are right now — history suggests a simple solution: they can use their legislative authority to pass new laws where the court has said current law does not extend. There is a long history of America’s system of “checks and balances” checking court power in this way.

In fact, the very first bill signed into law by Barack Obama in 2009, the Lilly Ledbetter Fair Pay Act, was enacted to reverse a 2007 Supreme Court ruling on gender pay discrimination, Ledbetter v. Goodyear Tire & Rubber Co.

The Civil Rights Act of 1991 — passed with overwhelming bipartisan majorities — was created to overturn nine decisions of the Rehnquist Court in one fell swoop. Landmark laws protecting religious freedom, empowering the federal government to regulate tobacco, and creating gun-free school zones were all originally created in response to Supreme Court decisions.  

Hasan and Rubin cite multiple examples in which they argue the Supreme Court has subverted the will of Congress: but if it was Congress’ will to enact more environmental laws, or voting rights legislation, or student loan debt relief, nothing is stopping the legislative branch from doing so.

Instead, in the current era, when the Supreme Court does something legislators disagree with, their first response is rarely legislation.

When the Supreme Court struck down Biden’s student loans plan, Senate Majority Leader Chuck Schumer (D-NY) declared that “the fight will not end here.” What did the most powerful man in the Senate mean by that? In the next sentence of his statement, he calls “upon the administration to do everything in its power” to respond to the Supreme Court decision, without considering any uses of his own considerable power. Even Congress no longer looks towards Congress for action.

I have written in the past that Congress gets more done than people give it credit for, and I do think that is true, especially on smaller issues that can still be hugely consequential.

But on the biggest, most hot-button issues of the day, many lawmakers have grown afraid to hold votes putting themselves on the record. Afraid that it will hurt them at the ballot box, they instead absent themselves and allow the executive and judicial branches to legislate for them. And if, in this case, Schumer is declining to hold a vote out of fear that Biden’s plan, in the form of legislation, would not receive congressional approval, perhaps that provides an answer unto itself. If a plan of such sweeping consequence does not have the support of a majority in even one chamber of Congress, perhaps it should not be happening.

On other issues, with legislative support but little legislative will, this congressonal paralysis calls for a stretching of our civic imagination. Of course, the most common answer is to eliminate the Senate filibuster, which would certainly inspire more legislating — or, the fear holds, too much legislating in the form of a dizzying back-and-forth each time control of Congress flips between parties, creating a paralysis of its own.

One potential compromise could be to lower the filibuster threshold without outright eliminating it. A 55- or 57-vote threshold, for example, would have been enough to enact bipartisan bills like the DREAM Act compromise on immigration (a policy space that has seen its own quasi-legislating from recent presidents), while still weeding out both parties’ more extreme ideas in an era where an approximately 50-50 Senate appears to be the norm.

Other changes are possible as well. The Washington Post’s Danielle Allen has proposed enlarging the House, arguing that growing the body for the first time since 1929 would lead to more innovation and the passage of more legislation with broad popular support. Georgetown’s Matt Glassman has called for a backdoor renewal of the legislative veto, in which major regulations like Biden’s student loans plan would sunset unless they receive congressional approval within a certain time-frame — flipping the onus from the current structure, in which regulations only lapse if disapproved within a certain period.

House Republicans this year have (at least in theory) sought to shrink leadership’s control and empower the rank-and-file, which can often lead to a more active legislative process, and also proposed the REINS Act, which would require that executive-branch regulations with an economic impact greater than $100 million receive congressional sign-off.

There is also the difficult, but not impossible, process of amending the Constitution. Kate Shaw and Julie Suk wrote in the New York Times earlier this year that “several generations of Americans have lost the habit and muscle memory of seeking formal constitutional change,” something that — like growing the House — hasn’t happened in decades but used to be much more commonplace. “It’s time to reacquaint Americans with the possibility of changing the Constitution,” they wrote.

Many previous Congresses have used constitutional amendments to respond to Supreme Court rulings: that is how we ended up with the national income tax (Amendment #16) and all three Reconstruction Amendments.

Also along the lines of responding to the court, law professor Stephen Vladeck notes in his new book The Shadow Docket that it was once routine for Congress to use legislation to alter the Supreme Court’s jurisdiction. Lawmakers have not done so since 1988, the longest period without congressional Supreme Court reform in the nation’s history.

Instead of arguing they have no power, or looking to the executive branch to do their work for them, there are plenty of once-common solutions lingering unused in the legislative arsenal if only lawmakers of either party wanted to begin invoking them.  

So far this year, according to C-SPAN’s Howard Mortman, the Senate has spent just 30% of its floor time on legislation, theoretically the raison d’etre of the “world’s great deliberative body.”

The other 70% of the chamber’s time has been spent on nominations — many of them for federal judges who will, in turn, spend their time tangling with the executive branch on actions impacting some of the nation’s most pressing issues. Congress, meanwhile, banishes itself to the sidelines: churning out judges, complaining about those judges’ rulings, and then opting to churn out precious few laws in response.


Former U.S. officials have held secret Ukraine talks with prominent Russians / NBC News

Trump raises $35 million in second quarter, advisers say / Washington Post

Wrongly imprisoned for 7 years, exonerated “Central Park Five” member wins NYC Council primary / Associated Press

Bypassing Biden: Democrats Think of What Could Have Been / Politico

How Tony Evers used the veto to extend school aid for 4 centuries / Milwaukee Journal Sentinel

Substance found in White House confirmed to be cocaine / CBS News


President Biden will continue his “Bidenomics” push with a speech in Columbia, South Carolina, announcing a new clean energy manufacturing partnership.

Vice President Harris will visit the Gila River Indian Community in Arizona to deliver remarks on Biden administration initiatives aimed at aiding Native Americans. Later, also in Arizona, she will visit a water infrastructure project to highlight investments from the bipartisan infrastructure law.

Congress is, ironically, on recess.

The Supreme Court has completed its term.

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