How Congress Is Structurally Weaker than the President and the Judiciary

People commonly complain that Congress is doing too little, being too passive while the other branches are doing much more (for better or worse). There’s a lot to this complaint, I think.

But I think it’s also worth recognizing that this might stem in part from one weakness that Congress has relative to the other branches (without denying that it’s also stronger in various ways than the other branches): Congress is the only branch that has to operate as a supermajority.

The President is one person, and can make his own decisions. To be sure, the bureaucracy can stymie him, but he is at least formally in charge of the Executive Branch, and practically has a lot of authority over it.

The Supreme Court can make decisions by simple majority vote.

But Congress requires majorities in both the House and the Senate (and of course 2/3 majorities if it needs to override a Presidential veto). Even when they are controlled by the same party, having a majority in one for some proposal needn’t mean that there’s a majority in the other.

Add to that the filibuster, which isn’t constitutionally required but which is an important part of the system, and the supermajority requirement to get things done (except in those situations where the filibuster doesn’t apply) can be a very serious barrier. I’m not saying this to condemn the filibuster—perhaps it on balance does more good than harm—but just to observe its effects. To be sure, there have been times in the past when Congress has been quite active despite these internal checks, but when there is sharp disagreement between the parties, that disagreement can weaken Congress much more than it weakens the Presidency or the judiciary.

Given this, we shouldn’t be surprised that there’s much more risk of gridlock in Congress than in the other branches. But beyond that, the laws that past, active Congresses have done often give more room for activity by today’s judiciary (which can interpret those laws in creative ways) and by today’s executive (which can enforce those laws in creative ways, and issue various executive orders within the scope of discretion that those laws leave). The majority vote judiciary and executive chug right along, and may indeed accrete extra power for the future, even when the supermajority-required legislature is internally blocked.

Again, this doesn’t tell us what to do about this problem; and there’s a lot to be said for supermajority requirements for various things. But we ought to realize that the asymmetric passivity of today’s Congress may stem from this structural asymmetry.

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