On November 13, 1787, Thomas Jefferson wrote from Paris about a rebellion that had frightened much of the American political establishment.
Farmers in Massachusetts had closed courts, taken up arms, and challenged the state government. Shays’ Rebellion was over, but people were still debating its consequences. George Washington worried that the young republic was coming apart, but Jefferson was less alarmed.
Writing to William Stephens Smith, Jefferson noted, “They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion.” He added a line that would live through the ages, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
From the safety of Paris, Jefferson could be remarkably casual about the dangers of rebellion. He did, however, understand the danger of people growing too accustomed to obeying the government.
James Madison had a different concern. In February 1788, while America debated ratification of the Constitution, Madison explained how the new government could restrain itself. In Federalist No. 51, he argued each branch needed the authority and motivation to check the others. “Ambition must be made to counteract ambition.”
In fact, Madison expected Congress to be the most powerful branch. “In republican government, the legislative authority necessarily predominates,” he wrote. He believed the legislative branch would be powerful enough to overshadow the presidency. That idea helped explain why Congress was divided into two houses.
Following Tuesday’s midterm election, Democrats take control of both chambers of Congress in January. President Donald Trump will face an opposition Congress for his last two years in office. Predictably, investigations and debates into presidential actions will follow. History has taught us that opposing the president is not the same as exercising constitutional duties.
In September, President Trump attempted a “pocket rescission” of $810 million appropriated by Congress. The administration submitted the request just five days before the funds were set to expire, expecting to run out the clock rather than seek congressional approval. The Government Accountability Office rejected the move: “The President may not force the expiration of budget authority Congress has already enacted and did not rescind.” This was not simply a disagreement over spending priorities. The president attempted an extraconstitutional move to override Congress.
It’s not that Congress doesn’t have its own issues. We’ve entered yet another federal fiscal year with a budget approved through regular order. The federal government is currently operating on a “continuing resolution” set to expire on December 11. It’s been 30 years since Congress has adopted a federal budget through the appropriations bills before the beginning of the federal fiscal year. If Congress cannot properly manage one of its most basic responsibilities, how can we expect it to effectively check the executive branch?
This dereliction has emerged over decades. Congress has outsourced authority to presidents and federal agencies, sometimes for legitimate reasons and sometimes to avoid consequential decisions. Members from both parties develop selective outrage at executive overreach by a president of the opposing party, while remaining silent when a president of their own party occupies the White House.
With the midterm results, the new Congress should embrace a mandate similar to the post-Watergate Congress to bring reform. Democrats will have good reason to defend congressional authority against Trump. The harder test will come when exercising their authority runs against their political interests. Some believe the new majority needs to impeach the president, but impeachment alone will not provide stronger guardrails than those that already exist.
In the next five essays, I’ll return to the founding arguments about the powers of government and the responsibilities that come with them. Hamilton and Madison disagreed over presidential authority. Jefferson and Madison argued about the debts one generation could leave to another. It’s worth revisiting those differences at a moment of historical opportunity.
Madison expected Congress to be strong enough to check the other branches of government. Instead, it has too often become the absentee branch, allowing presidents to fill the vacuum and leaving courts to settle questions members would rather avoid.
Jefferson believed Americans needed an occasional rebellion to remind their government who was in charge. Voters can change their congressional representatives, but they cannot make them exercise their constitutional duty. The question for the next Congress is whether it will rise to the occasion or continue the pattern of neglect.