As the specter of a Donald Trump presidency hangs in the air, congressional Republican leaders are panicking. Not only do they think Trump would be a disaster for their party, but many also believe he'd be a disaster for the country. And they are absolutely right.
While it's uncertain whether Republican leaders can stop his nomination at this point (especially if Trump wins Florida and Ohio, as polls predict), there's one very concrete thing they can do to mitigate the potential damage: Invest in staffing up Congress.
Because if Trump becomes president, Congress is going to be the one barricade protecting America from the demagogic hurricane of bullying fascism that Trump's campaign has been previewing for months.
And boy is Congress ever in need of an investment in its own staffing. Since 1980, Congress has steadily de-invested in its staffing capacity, a decline that has bled the place of institutional knowledge and policy knowhow. As one congressional staffer recently put it: "If you wanted a legislative branch run by K Street lobbyists and 25 year-old staffers, mission accomplished."
But the most troubling consequences of Congress's self-inflicted impotence may lie ahead. A Trump presidency may still not be the most likely scenario. But it's now squarely within the realm of the possible. Not doing anything to prepare is like staying in your ocean beach house without provisions when there's a Category 5 hurricane off the coast.
A reinvigorated Congress could blunt Trump
A reasoned debate over the constitutionality and feasibility of Trump's proposals are unlikely to stop him. What can stop him, however, is a Congress with the knowledge and resources to use its legal and constitutional authority to blunt Trump's destructive agenda.
For one, a good portion of Trump's purported agenda would require congressional authorization or, at the very least, congressional assent.
For example, if congressional leaders decided that banning all Muslims from entering the US is a terrible idea (which it is), they could presumably pass a law making it illegal for immigration decisions to discriminate based on religion, rendering any such executive action illegal.
To the extent that presidents carry out executive actions in direct defiance of Congress, they are on very weak constitutional grounds — especially if Congress has the resources and knowhow to challenge the executive actions effectively.
If Trump decides he wants to take military action somewhere, who in Congress has enough mastery of the War Powers Resolution of 1973 to effectively stop him? If Trump decides he wants to start a trade war with China, who in Congress has the trade policy knowhow to stop him? In short: Can Congress serve as a genuine alternative power source, using its authority and legitimacy and even subpoena power to offer an alternative vision for the country?
The fact that congressional Republicans have so struggled to respond to Obama's executive actions should be a clear signal that they can't succeed with what they have. As Kevin Kosar of the R Street Institute has convincingly written, "While the president and other executive agencies took action, Republicans were left spluttering over Obama's power grabs. It is easy to criticize the president for overreach, but that would fail to account for the more fundamental problem: Congress has not been the dominant branch for decades. The executive surpassed it long ago."
But whatever Republicans may say about Obama for political posturing purposes, Obama is not Trump. Obama may do things that Republicans disagree with, but he is the very picture of caution and patience.
Trump, on the other hand, is a true wild card who seems to think his impulsive unpredictability is his greatest strength. This is what makes him so dangerous.
The forgotten value of checks and balances
Unlike in parliamentary systems, where the legislature and the executive are elected together and work in close tandem, American democracy has two branches intended to provide checks on each other's power. This makes federal action difficult on many issues, because it requires coordination and compromise. This is the reason for much of the recent "gridlock" in Washington, and a source of endless frustration to those with bills they'd like to see pass.
But these same obstacles may turn out to be very valuable soon.
Unlike many Latin American presidentialist systems, which tend to concentrate much more formal power in the executive, our presidentialist system allots great powers to the legislature. But these formal powers depend on a legislature that is able to make use of them, especially in response to a bullying president.
Using these powers is not just a matter of will. It is also a matter of competence and capacity. It is a matter of having top experts who know the laws and how to use them. It is a matter of having enough people who can develop policy and conduct oversight independently and thoughtfully.
Time is short
Recently, Sen. Mike Lee (R-UT) announced a new project to reinvigorate the first branch of government, the Article I project. "The premise of the Article I Project is simple," Lee explained in a statement. "The federal government is broken, and congressional weakness is to blame."
Lee is one of the Republican senators trying to stop Trump. So he presumably understands what's at stake. Unfortunately, Lee's Article I project does not mention the issue of staffing. This is a great mistake.
Congress now spends about $2 billion on its own staff — a decent number, sure, but still a tiny, tiny fraction of the $3.7 trillion federal budget. It's also less than Trump's estimated net worth (between $3 billion and $4.5 billion)
A lot is at stake here. Consider what the costs of a Trump presidency might be if he starts a trade war. Or a real war. If so, the $2 billion we spend on Congress will look like pennies. And any member who didn't have the political courage to vote to give Congress the budget to hire enough top lawyers and policy people will have to explain why their shortsightedness paved the way for the most destructive presidency in US history.
Or at the very least, Congress should set up a year-long Joint Committee on the Capacity of Congress to study staffing capacity and make recommendations. That's the ask in a new letter, released today, signed by me, Meredith McGehee of the Campaign Legal Center, Kevin Kosar of the R Street Institute, Thomas E. Mann of the Brookings Institution, and Norman J. Ornstein of the American Enterprise Institute.