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The end of the founders’ presidency – Washington Examiner


The end of the founders’ presidency

Former President Joe Biden’s departure from the political scene is not just the end of a historical career or a political era. It may represent the last gasp of the founders’ view of a presidential-congressional balance.

For over a century, Congress’s power has been eroding, including during Biden’s 2021-25 presidency. Biden, by far the longest-serving member of Congress to ever be elected president — 36 years as a Democratic senator from Delaware plus eight years as vice president — would have seemed a natural to try to restore some Capitol Hill prerogatives. It is hard to imagine any future president, or even congressional leaders, having any real interest in reversing the growing executive branch power expansions, exemplified by President Donald Trump during his early weeks back in office after four years away.

Looking at the Constitutional Convention, it is clear that Congress was the focus of debate and the locus of power. The big debates were about apportioning House and Senate seats, which led to the famous Great Compromise, and what specific powers were to be given to the new government, which was handed to Congress. Only later in the game did the president come to the fore.

Engraving from 1881 commemorating the first presidential cabinet. From left to right: Henry Knox, Thomas Jefferson, Edmond Randolph, Alexander Hamilton, and President George Washington. (Getty Images)

The president was originally a secondary figure in government, with the focus of his enumerated powers being foreign and military affairs. He doesn’t even get to unilaterally choose his Cabinet members — he needs the Senate to approve them. It is no surprise that the Congress is situated in Article I of the Constitution.

Even the election of the president was focused on Congress. In the original iteration of the Constitution, James Madison’s Virginia Plan, the power to choose the president was solely in the hands of Congress. In four votes, the convention kept approving this election scheme and rejecting others. That was no surprise, as it copied the model used by most of the states, where the legislatures elected the governors.

It was only in the last days of the convention, when a special Committee on Unfinished Parts was formed to put the final document together, that the Electoral College, an idea proposed by Del. James Wilson and temporarily approved once and rejected twice by the convention, was controversially adopted. Even that form gave Congress enormous power. The Electoral College is effectively a shadow Congress, and there was an expectation by at least some of the members that it would effectively serve as a nominating body, one that would choose five candidates from which Congress would make the ultimate selection. Virginia Del. George Mason said Congress would end up choosing the president 19 times out of 20.

This plan fell apart pretty quickly, leading to a deadlock in the 1800 election, when Vice President Thomas Jefferson edged out President John Adams but tied his running mate, Aaron Burr, throwing the election to the House.

But even after the 12th Amendment radically changed the selection process, Congress remained the critical source of power. Throughout the 19th century, congressional leaders such as ex-Rep. Madison; former House Speaker James K. Polk; James Garfield, a house minority leader before that was an official position; and former Rep. William McKinley were all elected to the presidency.

The president gained increasing power shortly before and during the 20th century. With a few minor exceptions, Congress has been on a deep slide since McKinley took over in 1897. In recent years, this has only accelerated. Perhaps it’s no surprise that the two important congressional leaders to become president since, Lyndon Johnson and Gerald Ford, were both elevated from the vice presidency.

The Senate’s primary task now appears to be confirming judges, a fact that would be a huge shock to the Founders who barely dealt with the courts. Congress does not perform even basic tasks like proposing the budget. This has simply accelerated in the 21st century.

The Senate’s filibuster rightly comes in for its share of blame, but that cannot explain the full force of failure. While numerous far-reaching legislative actions were performed by both parties in the past, Congress and presidents enact few truly significant laws anymore. The Affordable Care Act, former President Barack Obama’s signature domestic achievement, is arguably the most prominent of the last 40 years.

Rather, big government actions largely come from executive orders from the president, ones that can be removed whenever the party in power switches hands. Trump’s actions in his first 36 hours of returning to power exemplified that trend. His most headline-grabbing executive orders aimed to end birthright citizenship, crack down on illegal crossings at the U.S.-Mexico border, and increase domestic energy production.

This trend toward executive power is almost certainly going to continue. Trump, in addition to his executive orders, has called for recess appointments to get his Cabinet picks in place. He has also created extra-government entities of sorts aimed at recommending ways to slash federal spending. All of this shows Trump exhibiting a strong disdain for the institution of Congress, a trait he shares with many of his recent predecessors.

Trump’s return to the White House is already leading to a head-snapping change in government policies. No one could be surprised by that, but one change that we will not see is a return to glory for Congress. Any hope that Biden could reverse this slide is long gone. The reality is that Trump is part of a century-long attempt to empower the presidency and the courts at the expense of Congress.

Joshua Spivak is a senior research fellow at Berkeley Law’s California Constitution Center and a senior fellow at the Hugh L. Carey Institution for Government Reform at Wagner College. He is the author of Recall Elections: From Alexander Hamilton to Gavin Newsom.



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