What Is Congress For?

The House and Senate need to decide whether they're content to be ceremonial bodies.

As I write this, Washington DC is dealing with the fallout of two events in which two different groups of people had to answer the question: what is Congress for?

One of these events came on 8 February, when the Supreme Court heard oral arguments in Trump v. Anderson. In this case, a collection of Colorado activists asked the Court to reaffirm the Colorado Supreme Court’s decision to ban Donald Trump from running for re-election, on the grounds that, back in January of 2021, Trump committed “insurrection” against the United States. The fact that the various criminal charges against Trump have not yet gone to trial is of little concern to them. Instead, they argue that because the fourteenth amendment to the constitution bars officers who have “engaged in insurrection or rebellion” from holding office again, judges should be able to remove an “insurrectionist” from the ballot as easily as they might remove a noncitizen, or a candidate who hasn’t reached the proper age.

Trump’s defenders had a different argument. They said that power to enforce the fourteenth amendment is given to Congress. In 1870, Congress enacted a law saying that US district attorneys, by filing a legal motion called quo warranto, could ask federal judges to remove ex-Confederates from office. Later on, that law was repealed.

And even if the quo warranto law was still in force, there’s a big difference between a US attorney – someone appointed by the President and confirmed by Senate – asking a judge to strip an accused insurrectionist of the right to run for office, and a group of private citizens doing the same thing. Ultimately, enforcement power for the fourteenth amendment belongs to Congress, and if our country is serious about being a constitutional democracy, then Trump should be tried according to laws enacted by Congress, or not at all.

Fortunately, even liberal justices like Elena Kagan appeared skeptical of the arguments that Trump’s enemies presented, as they questioned the right of state judges, acting on their own, to disqualify candidates from national elections. And with Republican appointees having a six-to-three majority anyway, we can be virtually certain that justice will prevail.

But there is bad news as well. Five days after the Court heard the Anderson case, the House of Representatives voted, by 214 to 213, to impeach Alejandro Mayorkas, the Biden Administration’s Secretary of Homeland Security. Yet the impeachment trial – if a trial is held at all – will be conducted in the Democratic Senate, which is virtually certain to acquit Mayorkas.

House Republicans impeached Mayorkas for “High Crimes and Misdemeanours” due to his deliberate nonenforcement of several immigration laws. And Mayorkas’ level of nonenforcement goes well beyond what Americans are already used to – in just three years under President Biden, about ten million illegal aliens entered the country, about the same number as were living here when Biden took office. You can read the articles of impeachment here.

All throughout the impeachment proceedings, Democrats have kept pointing to all the constitutional law experts who were on their side. They cited letters like this one, signed by a host of famous law professors including Laurence Tribe, that read, in part:

“The Constitution forbids impeachment based on policy disagreements between the House and the Executive Branch, no matter how intense or high stakes those differences of opinion…”

But is the deliberate nonenforcement of laws which Congress has enacted a mere “policy disagreement?” Is Congress a mere ceremonial body, whose enactments are advisory opinions which the executive and the judiciary may follow or ignore as they please? Or was Congress made for something bigger?

James Madison and the other men who wrote the constitution seemed to be of the latter opinion. This is why, after debating whether to have impeachments tried by a group of judges (the nearest thing to “law experts” that existed back then), the Philadelphia Convention discarded the idea and decided that only the House and Senate – like Britain’s Houses of Parliament before them – should be involved in impeachments.

Would this mean that impeachment would be a political act, and that some cases would end up being decided by party line votes? Well, yes, it would; the founders knew full well that any constitution is open to abuses. But at the end of the day, governing a country is a political business, and unless the executive and judiciary are somehow made accountable – for serious abuses of their power – to the people’s elected representatives, then we don’t really live under a government of the people.

When the Convention debated the proper grounds for impeachment, some of its members were in favor of “Treason and Bribery” alone. But then George Mason of Virginia stood up and said: “Treason will not reach many great and dangerous offenses. Hastings is not guilty of Treason.”

That comment was enough to make the other men in the room think twice. Warren Hastings, the former Governor-General of India, was at that very time being tried in the British parliament in what was perhaps the most famous impeachment trial ever. And the prosecution was led by Edmund Burke, a statesman universally admired in the former American colonies.

Yet Hastings – along with Elijah Impey, the colonial Chief Justice – was not charged with any crimes of the ordinary sort. Hastings and Impey had taken no bribes, committed no acts of treason, and obstructed no legal proceedings. They were simply accused of governing Britain’s new Indian territories in an excessively violent manner, of seizing Indians’ property without a sound basis in law, and (in Hastings’ case) of leasing soldiers to an Indian potentate for his brutal and unnecessary war against the neighbouring kingdom of Rohilkhand.

The founders, a bit flummoxed that they had almost written a constitution that would have let Hastings off the hook, added “other High Crimes and Misdemeanours” to the grounds for impeachment. This, they thought, was broad enough to cover any serious breach of the public trust, any conduct which Congress deemed especially subversive of the written laws and constitution.

That the founders expected Congress to impeach for political reasons is made clear in The Federalist No. 81, in which Hamilton, in order to rebut antifederalist claims that the new judiciary will be too powerful, says the following:

“There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations....”

Since Hamilton had already written, in The Federalist No. 65, that impeachment was to be “a bridle in the hands of the legislative body upon the executive,” we can be certain that the idea applies just as well to executive officials like Mayorkas as it does to the judiciary. If they try to usurp Congress’ role, then Congress needs a means to strike back. The constitution provides such a means.

It has, alas, very seldom been used. Nearly all impeachments of judges have been for bribery, graft, and (in the early days) drunkenness on the bench. The last judge to be impeached over constitutional issues was James H. Peck, who, in 1826, jailed a lawyer for contempt of court after the lawyer published an anonymous newspaper editorial criticizing one of his rulings. Judge Peck was acquitted by the Senate, though shortly afterward Congress, in order to prevent a repeated of the situation, passed a law restricting the use of contempt rulings.

The last political impeachment of any sort was that of President Andrew Johnson, impeached in 1867 by Congress’ radical Republicans for wilful violations of the Tenure of Office Act. Johnson, after arguing that the Act was unconstitutional, escaped conviction by one vote.

A century later, when the country finally saw a president forced out of office under threat of impeachment, it was Richard Nixon’s minor role in the Watergate coverup that brought him down, not his lies to Congress about the progress of the Vietnam War, or his invasion and bombing of Cambodia without legal authorization. Yet the latter were much more destructive of the constitutional order.

The failure of twentieth and twenty-first century Congresses to take their own powers seriously has led to elected representatives playing a smaller and smaller role in how America is actually governed. Think, for a moment, of the great constitutional questions of the last sixty years or so – questions like whether to create and later do away with a right to abortion, whether homosexuality should be protected by the fourteenth amendment, whether constitutional provisions created to establish equality of the races should also require equality of the sexes, whether capital punishment should be abolished, and to what extent federal judges should be involved in the administration of public schools. These questions have nearly all been decided solely by judges and lawyers, and not by ordinary citizens debating constitutional amendments and then (through their representatives) deciding whether to enact them, the way that their grandparents had decided questions like the income tax, women’s suffrage, and Prohibition.

The situation is no less bad at the statutory level. Just consider Title IX, the 1972 law which requires that most educational programs be equally open to both sexes. Since most people who hear the phrase “Title IX” do so when dealing with one of the huge and expensive bureaucracies which America’s universities have created to comply with this law, one might be forgiven for thinking that Title IX’s text, which you can read here, required the universities to create them. Actually, it did nothing of the sort; the regulations requiring the bureaucracies are the work of officials within the Office for Civil Rights, not of Congress. The same is true of the elaborate parallel court systems which the Obama Administration demanded that universities use to punish people accused of sexual harassment.

At every step, the bureaucrats involved claimed to merely be “clarifying” existing laws or regulations, and the federal courts helped them along by giving private individuals the right to file lawsuits under Title IX, despite the law’s text only granting enforcement power to the Department of Education. (One of the more extreme judicial findings was that, if a college’s male students participate in sports at a higher rate its females, the school is ipso facto discriminatory, and must remedy the situation by either cutting popular boys’ sports like wrestling, or lavishing money on girls’ sports until more girls sign up.)

Obviously, none of this would have become law if it had to go through Congress first. But in a country where bureaucrats and judges can usurp Congress’ powers without the slightest risk of blowback, such things are par for the course. The plain fact is that the House and Senate are both well on their way to becoming ceremonial bodies, much like the Roman Senate after the Principate was established, or the British House of Lords today.

During the Revolutionary War, when American diplomats met with their French counterparts, they often honored the French with toasts of ‘Vive le Roi!’ And the Frenchmen replied with ‘Vive le Congress!’ because everybody knew who was going to have the chief role in governing America, if the Americans succeeded in their quest to establish a new republic.

But nowadays, it seems that most Americans have forgotten what that war was all about. And the fact that Mayorkas’ impeachment only passed the House by one vote, and is dead on arrival in the Senate, does not bode well for our country’s future. Basically, about half the members of Congress are saying that it’s OK for a cabinet secretary to nullify immigration laws and let ten million foreigners illegally enter the United States, so long as he’s acting in service of ideology rather than doing it for a bribe.

Nor is the House’s refusal to even try to impeach Anthony Fauci, in the face of abundant evidence that he had lied about gain of function research, a cause for confidence in the institutions of government.

Events like Donald Trump’s Supreme Court win show that liberty in America isn’t quite as dead as some people wish that it was. But if this country is ever going to regain the democratic form of government for which earlier generations fought and bled, it’s only going to happen when our elected representatives wake up, shake off their fear of confronting the other branches of government, and remember what Congress is for.

This essay was originally written for the American Thinker.