Congress Has Fallen Far From Grace. Can Biden Restore It? | Opinion

Even before the January 6th riots and takeover of the Capitol, the increasing power of the presidency and the Republican Party's overwhelming focus on the judiciary has made Congress, the carefully designed center of the Constitution's political universe, practically an afterthought. Can Joe Biden, by far the most experienced legislator to ever ascend to the White House, right the ship and help Congress regain its luster?

The path to near irrelevance has been a long one, but ever since the Democrats lost control of the House in 2010, it has been accelerating. This is not just divided government. Despite holding both houses of Congress for the first two years of Trump's term, the only law of significance the Republicans passed was related to tax cuts. Senate Majority Leader Mitch McConnell, so feared by Democrats, can be viewed as a complete failure for his failure to enact his legislative agenda, despite being in power so long. McConnell has bragged about packing the courts with conservatives because his leadership otherwise accomplished so little.

It wasn't supposed to be that way. In 1787, the Convention spent months debating the finer points of the use of power and possible checks on it. In modern times, the smallest wording selection has been poured over by the courts and used to justify all types of political changes. But the very clear focus of the Constitution, and one subject that the Founding Fathers seemingly unanimously agreed on, has been ignored. The founders believed in the overwhelming importance of Congress. Its placement in the Constitution – Article I -- says it all. Most of the enumerated listing of the powers and limitations of the new Federal Government are contained in Article I. James Madison in Federalist # 51 notes: "In republican government, the legislative authority necessarily predominates."

While the presidency overawes the current political world, the founders did not know what to do with the job and hoped that its likely first occupant, George Washington, would be able to provide a pathway for the future. The brief sections dealing with the Executive focus on the job's military and foreign policy role. Budget and spending matters were clearly in the hands of Congress.

Perhaps more surprising, given our current political obsessions, there was little thought given to the Judiciary. The short Article III dealing with the Court is primarily about what cases they can hear. The Court's power of Judicial Review (not to mention the size of the court) was not brought up. In Federalist # 78, Alexander Hamilton calls the judiciary: "Beyond comparison the weakest of the three departments of power."

That world is no more. Starting at the turn of the 20th Century, presidents have increasingly aggregated power to themselves and their direct subordinates. Even its most important powers, such as budgeting, have been usurped by the president. The courts have also become a central focus of power, regularly throwing out statutes of Congress as unconstitutional. The conservative movement has tied these two together, with the promotion of an ultra-powerful "unitary executive" model, which we saw in action last year when Federal Appellate Court Judge Neomi Rao wrote a dissent that Congress had no power to investigate the president, and its only power over him was impeachment.

While the unitary executive theory may be in abeyance since the primary proponents don't control of the White House, there is plenty of reason to think Congress, even one controlled by the Democrats, will keep looking to the White House for executive orders and other end runs around the legislative process.

But if one person can return influence to Congress, Joe Biden may be it. Twenty five presidents have served in Congress before stepping up to the White House. But most of them had relatively unmemorable stays in Congress. Only four legislative leaders have moved up to the presidency: Majority Leader Lyndon Johnson, Speaker of the House James K. Polk and Minority Leaders James Garfield and Gerald Ford (both of whom had abbreviated terms). Of the other former legislators, arguably only Madison and William McKinley, Ways & Means Committee Chair, and now Biden, former Chair of the Judiciary Committee, were notable leaders in the branch.

This small group of former legislators were fairly accomplished as presidents. While four of them are noted for the wars that were fought during their terms, they all managed to make a significant mark on the office. Polk may be the single most successful of the one-term presidents. McKinley helped usher in the modern presidency. Johnson's term resulted in numerous long-sought legislative triumphs, most notably for the Civil Rights and Healthcare laws.

Johnson may be the most useful to consider, as he is the only one who served since the presidency became truly ascendant. Johnson's legislative successes were built on his knowledge of the Senate, as he noted with the Civil Rights Act that they need to "write it in the books of law."

So far, Biden seems to have the same ideal. Early reports indicate that he is pushing back on the idea that he should be issuing executive orders to accomplish the party's goal. Passing laws are much harder to accomplish, but they are also vastly more important. As we've repeatedly seen, executive orders can be tossed out by the next administration. But laws are on the books. Biden's approach may seem limited, but its effects can be lasting. It also may allow opponents, including Republicans, to be brought aboard and help start the process of "unity" and healing that Biden has stated as a goal.

By using a legislative approach, Biden would not only craft legislation, he could also help restore some luster and some power to the institution that he dedicated such a large portion of his life. For Congress, this may be the only pathway to restore their power.

Joshua Spivak is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College in New York. He blogs at the Recall Elections Blog.

The views expressed in this article are the author's own.