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Constitutional Basics: Congressional Supremacy

The current presidential administration asserts so much intellectual garbage as valid constitutional theory I feel obligated to speak up. Reasonable people can, and do, disagree about constitutional interpretation. But there are limits to what can rationally be disagreed about, outside of which you’re just in a realm of cynical absurdity. Cynical because those arguing want you to believe that because some matters are up for interpretation, all are. And absurd because their arguments ignore and contradict foundational concepts to our Constitution. It’s as if they’re arguing the Constitution is written in Polish when it’s obviously written in English.

There are things about the Constitution that aren’t subject to reasonable debate. Foremost is that Congress is superior to the other branches of government. The Executive Branch and even members of Congress often talk about how the Executive Branch is a “co-equal branch” of government. Thus, the argument goes, the President can ignore congressional subpoenas and make claims of “constitutional immunity” found nowhere in the text or history of our Constitution. But claims that the Executive, or the Judicial branches, are “co-equal” with Congress ignore the structure, the text, and the foundational political theory underlying the Constitution. All of which directly contradict a theory of “co-equality” among the three branches.

First, the structure of the Constitution places Congress first. Article I vests the legislative power with Congress. This wasn’t an arbitrary choice by the Framers. It was a considered one made by people who’d just fought a revolution against an abusive executive – King George – and who were deeply concerned about creating an executive branch that would engage in the same type of abuse. That’s why there was no executive branch for most of the decade after the Revolution as our country stumbled along with the Articles of Confederation. No one wanted one. And when the need arose, the Framers were careful to limit the Executive’s power.

Congress precedes the existence of the Executive by 15 years. The first Continental Congress was in 1774, George Washington took his oath of office in 1789. There is no Executive Branch without Congress, but Congress has existed, and can exist, without the Executive.

You also can’t fully understand congressional supremacy without some knowledge of the historical backdrop against which the Constitution was written. One that consists of the history of the battle for supremacy between Parliament and the British Crown. The power struggle between Parliament and the Crown is why our House of Representatives has the power of the purse, and why Congress has the power to impeach and remove the Executive. Because those are the key powers that led to Parliamentary supremacy.

Second, the explicit textual power of impeachment – an explicit power delegated to Congress by the Constitution, is the clearest expression of congressional superiority over the Executive there is in the Constitution. And a significant departure from the British practice. Because the Crown cannot be impeached in the British system. The Framers pointedly gave Congress that power, and by so doing indisputably made the Executive subordinate to congressional will in marked contrast to the British system. To argue otherwise is to argue for King George.

Third, arguments for the co-equality or superiority of the Executive Branch ignore the foundational political theory underlying the Constitution as a whole. It’s expressed in the first sentence: “We the People . . .” It’s the People that are sovereign in our constitutional system, not the President. And as John Locke and William Blackstone, two fundamental political theorists for the Framers, make clear, it’s the legislature that is the ultimate expression of the People’s sovereignty in a representative government. There’s not room for debate on this issue, it’s just a simple historical fact that’s structurally and textually clear in the Constitution. Just as clear as the fact that the Constitution is written in English and not Polish.

Fortunately, our courts know the Constitution better than our current cynical, absurd, and self dealing Executive Branch. And in normal times, it’s understandable that people accept much of what is said about the Constitution as reasonable even when there’s disagreement, because there’s still agreement about the background fundamentals. But these aren’t normal times, and what the current administration is doing is contradicting the fundamental background of the Constitution, without which it becomes meaningless and subject to the whims of despotic interpretation. This is anarchy, and not the rule of law. So the next time you hear someone say that the Executive Branch is a co-equal branch, correct them. No matter who they are. Defend the Constitution, against all enemies, foreign and domestic.

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