I have an op-ed in today’s New York Times about one of the things revealed by the ongoing oversight battles in Washington—that both Congress and the administration have lost sight of some of Congress’s core functions.
Though it touches on it only lightly, it was triggered, so to speak, by various people (including Rudy Giuliani) criticizing Congress’s aggressive oversight efforts by insisting that Congress and the presidency constitute “coequal” branches of government in our system. This is a commonly stated view, I even ran across it in a high-school civics textbook once. But it plainly isn’t true.
The term coequal does appear several times in the Federalist Papers, but never to describe the relations between Congress and the president. Alexander Hamilton uses it in Federalist 20 to describe the different states as coequal with each other. James Madison does the same in Federalist 39. Hamilton also uses the term in Federalist 32 and 34 to describe a coequal state and federal power to tax. In Federalist 63 he describes the House and Senate as coequal within the Congress. And in Federalist 71 he uses the term in the course of describing attempts by the British House of Commons to wrestle power from the lords and the crown. So both Madison and Hamilton possessed this term in their vocabularies, and both had a lot to say about the relationship of Congress and the president, but neither described that relationship as involving coequal branches.
On the contrary, Madison famously says that such a relation of equals isn’t really possible in a republican regime. “In republican government, the legislative authority necessarily predominates,” he notes in Federalist 51. This isn’t altogether good. That kind of legislative predominance can threaten our freedom, and especially the freedoms of minorities, which means it has to be kept in check. So our constitution employs a variety of means to restrain Congress. But none of these comes close to putting the branches on an equal footing. A presidential veto can void an act of legislation unless a large enough majority of Congress insists on it. The Supreme Court can effectively void a law it deems to violate the Constitution. But these are marginal restraints, not equalizing powers.
The president is given more room than the judiciary to exert some will. And as Hamilton put it in Federalist 71, “it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.” The presidency has its own prerogatives, and presidents are right to defend them. But even this, for Hamilton, was only a way to counteract the inexorable “tendency of the legislative authority to absorb every other.” It does not set the president on par with Congress—not in its basic powers and not even in its relations to other branches. All three are given some tools of defense against the others. But at the end of the day, as Madison noted, “It is not possible to give to each department an equal power of self-defense,” and the Constitution does not affect to do that. Congress is supreme.
This is just as clear in the basic operation of the system. Most obviously, as I suggest in the Times, Congress makes the laws that the executive must enforce and the courts must interpret. But that Congress has a different sort of power is evident beyond that too.
If it can muster large enough majorities, Congress can remove even the highest-ranking officials of the other two branches, for instance. Neither of the other two has the power to remove a member of Congress. Each House of Congress makes its own rules, but Congress can legislate the scope, budget, and organization of the other branches. And it can hold those other branches to account by means that they cannot deploy in return.
Even the annual State of the Union Address, with its unseemly and almost monarchical pomp around the presidency, involves the president coming to Congress to report on his progress and the state of the government’s work. Who’s reporting to whom?
Of course, presidential power has become hyper-inflated over many decades and Congress has tended to diminish itself, but that is a deformation, and the structure of our system offers Congress some means to reverse it (even if the larger political culture tends not to encourage a will to do so). If the branches seem almost equal at this point, that is because Congress is too weak and the presidency (and courts) too strong, not because they are supposed to be “coequal.”