Among the many reasons the political discourse in Washington has gotten so toxic, and at the same time so unproductive, is that the legislative branch of our federal government has allowed itself to become increasingly irrelevant.
It isn’t just that the presidency and the courts have usurped policymaking authority that properly belongs to Congress. Most members of Congress, in both parties, have willingly ceded that power. With great power comes great responsibility, as Spider-Man famously learned to his horror. To put it bluntly, most members of Congress don’t want the responsibility. They’d rather bloviate on television or run online fundraisers than actually do their jobs.
Here in North Carolina, our General Assembly has faced similar encroachments on legislative authority by Gov. Roy Cooper and, occasionally, the state judiciary. Unlike their federal counterparts, state lawmakers haven’t shirked their responsibility. They’ve fought back. Sometimes they’ve won. Sometimes they’ve lost. But even losing in the short run can bring victory on the issue in the long run.
Why does a weak legislative branch produce toxic, unproductive politics? Because representative bodies are the best places to hash out solutions to complicated problems. Crafting and passing bills is a messy process. That’s a feature, not a bug. It’s a process that subjects competing views to intense scrutiny. And it requires some give-and-take to get to a final version that can pass both chambers.
When presidents or governors seek to bypass legislative process with executive orders, they don’t abolish or avoid the messiness. They just move it elsewhere. Because they are not laws, executive orders are inherently unstable. They change when the administration changes. Executive orders are often poorly written and poorly reasoned, citing shaky legal authority that invites costly and unpredictable litigation.
As for court orders, they are an even-more-outrageous invasion by judges into public-policy matters best left to more-accountable branches of government. Judges neither appropriate money nor exercise police power. When they purport to act as lawmakers, judges destroy the public confidence upon which their legitimate power depends.
You never get entirely or precisely what you want from legislation. That’s also a feature, not a bug! No one expects dozens or hundreds of legislators, from different parties, with varying priorities and interests, to “settle” an issue once and for all. You pass what you can pass this year, then hope to come back to the issue later with more elected lawmakers who agree with your ultimate objectives.
But when a single executive or a small group of judges became the focus of political debate, the stakes go up. It’s all or nothing. Go big or go home. The debate also becomes too personalized, too much about supporting or opposing individuals instead of contrasting ideas.
While Congress has let itself become enfeebled — preferring fan service by social media and talk show over the hard work of legislating — the North Carolina General Assembly has shown itself willing to defend its legislative prerogatives. During the course of the COVID crisis, when lawmakers saw Cooper exercise power far beyond what was intended by the Emergency Management Act, they enacted bills to reopen specific industries, such as bars, and to clarify that the governor must obtain support by a majority of the Council of State to shut down indefinitely vast swaths of economic and social activity. Now state lawmakers are talking about similar legislation to get North Carolina’s schools reopened.
Cooper vetoed those past bills, of course. He’ll likely veto the next one, too. He clearly believes he is making the right decisions in balancing the health risks of COVID-19 with adverse consequences for workers, businesses, families, and schoolchildren.
But the issue isn’t going away. Every time the legislature puts him on record claiming virtually unlimited power, it becomes more likely that the Emergency Management Act will be amended in the future, probably when the COVID crisis is over. That will help restore needed checks and balances in North Carolina government.
Congress ought to consider actually legislating for a change.
John Hood is chairman of the John Locke Foundation and author of the forthcoming novel Mountain Folk, a historical fantasy set during the American Revolution.