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How it was Supposed to Work: The Legislative Branch [1]
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Date: 2025-03-30
Alexander Hamilton and Federalist #70 notwithstanding, most of the Founding Fathers envisioned that the legislative branch embodied by Congress would be the most powerful branch of government.
James Madison and Federalist #51 was especially clear on this view:
In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions.
The Connecticut Compromise during the convention created a bicameral legislature, and it was endorsed by the Federalists because they feared that even the legislative branch — which was closest to the people — would usurp too much power and became a tyranny.
Fast forward nearly 250 years and I would argue that the legislative branch is the WEAKEST of the three branches of government right now. The executive branch has basically been handed or has usurped all of its authority. The reactionary judicial branch has also seriously limited what it can do. Congress is ossified and plagued by partisan politics and a lack of imagination.
How did we get to this sad state of affairs? Is there any hope of getting back to a point where the three branches are co-equal as was intended?
Let’s see what Congress was meant to be and what Congress is now below the fold.
If Men Were Angels…
James Madison knew that unscrupulous people (such as in the Musk/Trump regime) would be attracted to the potential power found in governance. Most governments throughout history have been monarchies or have fallen into despotism.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
The checks and balances found in the Constitution are an offshoot of that thinking. Instead of concentrating power, the power of governing the country was dispersed as widely as possible.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other and that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
Despite the Founding Fathers not envisioning political parties, they created a system where such entities would flourish because it allows for “opposing and rival interests” both to be represented and influential in the government. Federalist #10 by James Madison was very clear of the dangers of faction and the need to pit one faction against another to ensure rights were protected.
Since the legislative branch was meant to be the most powerful one, it was given the most checks and balances over the other branches. It was even given checks and balances against itself (bicameralism) so that it could not amass enough power to rule!
Theories are fine and all but let us see how this is put into practice.
How the Legislative Process Was Intended to Work
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
There are few better ways to explain how the legislative process is supposed to work than the classic Schoolhouse Rock video on how a bill is supposed to become a law. Yes, it is simplistic but many people don’t even know the basics these days!
What happened to that idealism? Well, a different clause (Section 5, Clause 2) has made it very hard to pass even basic legislation.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.
Basically, there are so many rules that are abused to stop legislation in its tracks that it makes it next to impossible for any substantive bill to make it through both chambers of Congress. Indeed, much of the rest of the series will be taking a look at these arcane rules and their impact on legislation. Quickly, some of the problems include cloture, the filibuster, committees, and different ways of voting to kill a particular measure.
The parties used to be ideologically such that compromise was possible because each party had a liberal and a conservative wing that could cross over. Now with extreme ideological sorting and partisan polarization such compromises are rare occurrences. Thus stuff only gets done when a political party controls all three branches of government and even then it doesn’t always mean things get done. It is frustrating when we are in power but it’s a good thing now that we have very little power in government.
Here’s more of the reality of how things work now:
So What is Congress Supposed to Do?
Congress as envisioned was supposed to have solely the powers enumerated in the Constitution. This worked in theory when the world wasn’t as complex back in the late 1700s. Today, so-called “constitutional conservatives” pine for the days where Congress is extremely limited (but only when the Democrats are in charge). Here are some of the key clauses that empower Congress and what has happened to them since drafting the Constitution.
The Congress shall have Power To lay and collect Taxes, Duties , Imposts, and Excises , to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States. This is probably the last remaining major source of power Congress has. Even this is under threat between an attempt at giving the President a line-item veto (thankfully ruled unconstitutional by the Supreme Court) and the theory of impoundment (against the law and also ruled unconstitutional).
This is probably the last remaining major source of power Congress has. Even this is under threat between an attempt at giving the President a line-item veto (thankfully ruled unconstitutional by the Supreme Court) and the theory of impoundment (against the law and also ruled unconstitutional). The Congress shall have Power [...] To borrow Money on the credit of the United States . Pretty self-explanatory. The deficit peacocks that come out only when Democrats are in charge need to remember that fact.
Pretty self-explanatory. The deficit peacocks that come out only when Democrats are in charge need to remember that fact. The Congress shall have Power [...] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. This power has largely been ceded to the executive branch through delegation of that power to government agencies. The nondelegation doctrine constrained the legislative branch from ceding its power via the courts. That eventually fell out of favor in the 1930s though there is a major effort to revive that doctrine again in the Extreme Court era.
The Congress shall have Power [...] To establish a uniform rule of Naturalization , and uniform Laws on the subject of Bankruptcies throughout the United States. Immigration and naturalization should be the purview of Congress — not the executive branch. Presidents of both parties have selectively ignored immigration law for better or for worse. Determining bankruptcy laws is another area where Congress still has powers left to it.
The Congress shall have Power [...] To coin Money , regulate the Value thereof, and of foreign Coin… To provide for the Punishment of counterfeiting the Securities and current coin of the United States. The power coin money has been largely delegated to the US Treasury and the determination of the value of money has largely been ceded to the Federal Reserve. The US Secret Service largely handles people who counterfeit money these days.
The power coin money has been largely delegated to the US Treasury and the determination of the value of money has largely been ceded to the Federal Reserve. The US Secret Service largely handles people who counterfeit money these days. The Congress shall have Power [...] To establish Post Offices and post Roads. Given that the USPS is on the chopping block this power has basically been rendered moot. A very broad interpretation of “post road” allows for the Congress to fund some infrastructure improvements and that is a power Congress still has even if so called “pork-barrel” spending is under attack.
The Congress shall have Power [...] To declare War… This power has definitely been totally ceded to the executive branch. Sure, they still go through the motions of approving an AUMF but ever since WWII a war has not been declared by Congress. It is the executive branch that largely influences this power rather than Congress. This is something the Founding Fathers feared.
The Congress shall have Power [...] To raise and support Armies; but no Appropriation to that Use shall be for a longer Term than two Years… To provide and maintain a Navy. The Founding Fathers feared a large standing army and inserted the final provision to head that off. Given the power of the military-industrial complex (as warned by President Eisenhower) Congress really doesn’t have the power to say no. Besides, appropriations for military items bring the bacon home to each district.
The Congress shall have Power [...] To make Rules for the Government and Regulation of the land and naval Forces. The Pentagon and the executive branch has largely captured this power of Congress as well. There was a small period after WWII where Congress tried to assert this authority but even there it was largely swatted down by the courts or usurped by the executive branch.
The Congress shall have Power [...] To make all Laws which shall be necessary and proper f or carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. It’s this clause that allows Congress to theoretically go beyond the powers enumerated in the Constitution. The debates over what this means started very early and continue to the present day. Usually, the courts have given broad latitude to Congress to determine what “necessary and proper” means but that is increasingly under attack by the Extreme Court.
There are also some things Congress cannot do, such as suspending habeas corpus, passing bills of attainder or ex post facto laws, drawing money from the Treasury outside of the appropriations process, and a few other minor things.
So What Checks and Balances Is Congress Supposed to Have?
Congress is supposed to provide quite a few checks and balances over the other branches. These are the major five checks and balances built in to the Constitution.
Impeachment and Conviction : if crimes are committed, the House has the power to impeach members of the other branches and the Senate has the power to convict them. In practice this has become a highly partisan affair and thus has been neutered. I’ll write more on this topic later. Power of Investigation : Although not mentioned in the Constitution, Congress has also long asserted the power to investigate and the power to compel cooperation with an investigation. [ 10 ] The Supreme Court has affirmed these powers as an implication of Congress's power to legislate. [ 11 ] Since the power to investigate is an aspect of Congress's power to legislate, it is as broad as Congress's powers to legislate. [ 12 ] However, it is also limited to inquiries that are "in aid of the legislative function"; [ 13 ] Congress may not "expose for the sake of exposure". [ 14 ] It is uncontroversial that a proper subject of Congress's investigation power is the operations of the federal government, but Congress's ability to compel the submission of documents or testimony from the president or his subordinates is often-discussed and sometimes controversial (see executive privilege ), although not often litigated. As a practical matter, the limitation of Congress's ability to investigate only for a proper purpose ("in aid of" its legislative powers) functions as a limit on Congress's ability to investigate the private affairs of individual citizens; matters that simply demand action by another branch of government, without implicating an issue of public policy necessitating legislation by Congress, must be left to those branches due to the doctrine of separation of powers. [ 15 ] The courts are highly deferential to Congress's exercise of its investigation powers, however. Congress has the power to investigate that which it could regulate, [ 12 ] and the courts have interpreted Congress's regulatory powers broadly since the Great Depression . Approval of Cabinet nominations and judges : Every Cabinet nomination and many others need approval by the Senate before starting their jobs in the executive branch. Every judge needs confirmation of the Senate. In practice, this has become another highly partisan and ideological affair. The filibuster and cloture no longer apply to these nominees. Determine the Size and Jurisdiction of the Courts : Congress passes legislation to create the courts below the Supreme Court. : Congress passes legislation to create the courts below the Supreme Court. Jurisdiction stripping is very rarely used but has increasingly occurred in recent decades. Veto Override : Even if the President vetoes legislation, there is a chance of overriding the veto if 2/3rds of each chamber of Congress votes to do so. So far, a veto has been overridden : Even if the President vetoes legislation, there is a chance of overriding the veto if 2/3rds of each chamber of Congress votes to do so. So far, a veto has been overridden 112 times in history.
In a functioning government these checks and balances would work properly and Congress would be a co-equal branch of government. In practice, many of these have gone by the wayside except the power to investigate the other branches of government.
Conclusion
So when did Congress fall apart? When did it start ceding its power?
Well, you can blame the executive branch for capturing power during each crisis. The Great Depression and the alphabet soup of agencies made to handle the problems created by it was especially a time where they lost power even if the courts slapped down some of it.
But the hugest culprits of this are the two Republican politicians that broke the House and the Senate: former House Speaker Newt Gingrich and Sen. Mitch McConnell. By purging the liberal to moderate wing of the party and shunning compromises on principle (not always of course), it meant that legislation would need extraordinary measures to get passed. I come back to the parody video I posted. It is closer to the truth than we’d all like to admit.
Absent a total blowing up of the House and Senate rules or an Extreme Court that returns the nondelegation doctrine to destroy entire agencies, Congress will continue to wane in influence. It will be seen merely as a launching pad for ambitious politicians (House to Senate to President or governor of their state) as the serious lawmakers who pine for the good old days retire or die.
I don’t have an easy answer here.
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