Dayton is a former House GOP aide and a policy advocate at Protect Democracy, a nonprofit that works "to prevent our democracy from declining into a more authoritarian form of government." Marcum is a governance fellow at the R Street Institute, a pro-free-market public policy research organization.
It is rare these days that people have happy news to share in the nation's capital. But we are here to do just that.
Last week, the House Rules Committee held an extraordinary hearing on ways Congress could reassert authorities it has long ceded to the executive branch. It was extraordinary for its form, its substance and its energy. (And yes, we're still talking about a Rules Committee hearing.)
First, the form. The hearing used principles that were first developed by the Select Committee on the Modernization of Congress. Established just last year, part of the purpose of this rarely discussed Modernization Committee is to "help Congress help itself" with new processes that make it more effective and less polarized.
Last week, the Rules Committee practiced what the Modernization Committee has recently preached. And the result was a hearing conceived on a bipartisan basis, with witnesses picked jointly by committee staff from both parties, and with unlimited time for committee members to probe witnesses and dive more deeply into substantive and complex policy questions.
Beyond these bipartisan successes, perhaps the most important symbolic moment of the hearing was this: Instead of turning over the gavel to another member of his majority, as is almost always done, when Democratic Chairman Jim McGovern of Massachusetts had to leave the room he handed it to the panel's top Republican, Tom Cole of Oklahoma.
To understand the importance of this small but significant gesture, it's important to understand that the Rules Committee's members are appointed by the Speaker with an eye toward making sure the majority always wins. Almost all controversial legislation passes through Rules, which sets the procedures for debating and amending bills on the House floor. The Rules majority has the most lopsided majority of any committee, essentially guaranteeing the Speaker will get the ground rules she asks for.
This means most committee proceedings are entirely party-line affairs. But, last week, as Cole noted in his opening statement, the committee did not function in "usual partisan camps of 9-4" but instead came out 13-0 in favor of improving the institution of Congress.
And this leads to the substance of the hearing, focused on how Congress can reassert national security authorities it has long lost or delegated to the executive branch. In a joint statement announcing the hearing, McGovern and Cole argued that Congress for many years has been abdicating its authority to presidents over such fundamental matters as going to war, monitoring the regulatory process and controlling federal resources and powers during national emergencies. This "has happened regardless of which party controlled Congress or sat in the Oval Office," they noted, and so bipartisan diligence on Capitol Hill will be the only way to recalibrate the balance of power toward the legislative branch.
In his opening, Cole furthered this sentiment, noting that the Founders positioned Congress in Article I of the Constitution for a reason: "It was no accident that they first described the powers entrusted to Congress on behalf of the American people. Indeed, the legislative branch established in Article I remains the most closely connected to the views of our nation's citizens to this day."
The witnesses, who fell across the ideological spectrum, agreed. Testimony from professors Laura Belmonte and Matthew Spalding's provided a historical background of an ever-expanding executive branch coinciding with a legislature that has become more reluctant to use it foreign affairs powers. Professors Saikrishna Prakash and Deborah Pearlstein offered a number of possible reforms.
The hearing's bipartisan goodwill and institutional focus were only surpassed by the committee's genuine energy for reform. In addition to McGovern and Cole, most of the committee attended the entire hearing. This is a rarity in Congress, let alone for a hearing that went on for nearly four hours.
Members had also clearly done their homework. Two members of both the Modernization and Rules committees, Democrat Mary Scanlon of Pennsylvania and Republican Rob Woodall of Georgia, asked detailed questions about Congress' structural role. Republican Debbie Lesko of Arizona emphasized deep thinking about these issues happening across the political spectrum and referred to a recent Republican Study Committee report that included many recommendations about taking back power it has long abdicated. Democrat Donna Shalala of Florida, who was Health and Human Services secretary in the Clinton administration, explained that executive branch officials often "celebrate" this abdication and try to "drive a car through" broadly (or badly) drafted legislation.
Optimism for congressional reform, however, is always marred by subsequent inaction. Members of the Rules Committee have taken the important first step of setting the model for other members and committees. From here, it is up to the public — and the people's branch of government — to continue this important discussion.
Nyman is a government affairs specialist and Marcum is a governance fellow at the R Street Institute, a nonpartisan and pro-free-market public policy research organization.
Update: President Trump was impeached by the House of Representatives on Dec. 18.
Imagine the following: Early next year the House of Representatives impeaches President Trump. One of these three scenarios is likely to follow.
Behind curtain number one, the president is acquitted at the subsequent trial in the Senate. He then takes the stage in Charlotte, N.C., to accept the Republican nomination for president in 2020.
Behind curtain number two, the Senate convicts the president and he is removed from office — yet he still takes the stage in Charlotte to accept the 2020 nomination.
Behind curtain number three, the president, having been impeached by the House, resigns from office. Nonetheless, he still makes his way to Charlotte to accept the 2020 nomination.
Each scenario is both possible and constitutional. Worse still, they are nationally unprecedented and each has the potential to severely damage our political institutions.
Because Richard Nixon resigned in 1974 before an impeachment vote by the full House, we have only two presidential impeachments to draw on for our analysis: those of Andrew Johnson and Bill Clinton. As in these cases, an impeachment vote is the most likely outcome. A simple majority in the House suffices to impeach a sitting president. Today, Democrats hold a majority of the seats. More than 220 of them already support taking action on impeachment.
Once a president is impeached he faces the possibility of removal from office. Removal of a sitting president entails a higher burden than does impeachment: It requires a trial before the Senate, presided over by the chief justice of the United States. A two-thirds majority is required for conviction on each count brought by the House. Being found guilty on any single charge means Trump's removal from office. According to current rules and Senate Majority Leader Mitch McConnell's own words, the Senate would be compelled to hold a trial. Yet given the Republican majority in the Senate, it is likely that — just as in past instances — the vote fails to reach that supermajority threshold.
If that happens, the Constitution permits a second Senate sanction: "disqualification to hold and enjoy any office of honor, trust or profit under the United States." In other words, a vote for disqualification would forbid the president from running for federal office ever again.
And yet, barring a Senate vote in favor of this sanction, the president's removal from his current office is not tied to disqualification from holding future federal office. As Ohio State law professor Edward Foley observes, "The Senate's practice in impeachment cases has been to hold separate votes on removal and disqualification." Indeed, in our nation's history, there have been only eight successful impeachment convictions, and of those, only three of the individuals impeached were prohibited from holding future office.
In other words, though the likelihood of Trump being removed from office is slim, unless the Senate subsequently votes to disqualify him from holding future office he could run for president again in 2020. This would be an unparalleled event in American history and open the door to many uncomfortable situations.
The president's unprecedented post-impeachment campaign would face off against an unprecedented challenger. Polling indicates the likely Democratic nominee will either be a senator who could cast a vote to remove Trump from office or the individual whose family was central to the Ukraine machinations that sparked the initial impeachment inquiry. In fact, eight of the potential Democratic nominees are sitting members of Congress who would be involved in the impeachment or removal process — a scenario that seems more appropriate as a chapter out of Hobbes' "Leviathan" than legitimate political procedure.
Yet it could very well happen. After all, Trump's quiet retirement is unlikely, and the president has shown an eagerness to reinstate a full political campaign. Both the political and legal realities support his fervor.
The political groundwork for Trump's 2020 campaign, too, has already been laid. Even if he were to lose the support of voters, the Republican National Committee would have no time to present a viable contender before the primary season, which begins in four short months.
Another discouraging note: If Trump is impeached, it will mean two out of the last four American presidents have been sanctioned in this manner — both in the last 21 years. Before Nixon and Watergate in the 1970s, 11 decades elapsed between presidential impeachment attempts. It is not as though more than six scores of American history were devoid of scandal — the Grant Whiskey Ring and Teapot Dome representing just the tip of the abuse-of-executive-power iceberg.
As the partisan divide deepens and impeachment proceedings intensify, the courts may very well need to adjudicate new or unforeseen constitutional questions. On these issues, if the Supreme Court is thrown into the fray, it risks dangerously tying the judiciary to the politics of impeachment and increasing the public's growing cynicism toward the third branch.
For Trump, impeachment is likely, removal is dubious, and a re-election campaign is all but certain. This domino effect of unprecedented circumstances poses uncomfortable questions that challenge our democratic norms and could fatally weaken our longstanding institutions.
How does impeachment work? - Alex Gendler
Marcum is a governance fellow at R Street Institute, a nonpartisan, pro-free-market, public policy research organization.
July's Democratic presidential debates highlighted a number of important national issues. From health care to economic inequality, candidates offered many purported solutions. The vast majority of these ambitious plans, however, face a fundamental constitutional roadblock: Congress.
Without congressional support, plans such as Medicare for All or amending the Immigration Nationality Act are dead on arrival. Voters, candidates and media alike are well aware that Senate Majority Leader Mitch McConnell would prevent any such legislation from passing his chamber, and if Republicans take the House, the chances for passage are even slimmer.
But if you were completely unfamiliar with American civics, you might have assumed from watching the debates that a president's role is to make policy and lambaste Congress when it does not comply. But of course, all legislative power rests with Congress. Viewers of the debates would be better served by questions that illuminate the presidency's actual institutional roles. These responsibilities are vital for governing, but we often fail to press candidates about them until it is too late.
The president is the commander in chief and has the responsibility to "take care that the laws be faithfully executed." The president also possesses the power to nominate federal judges and high-level federal officials who oversee the workings of an ever-expanding executive branch.
Legal scholars and government lawyers often discuss the "inherent powers" of the presidency, which include the power to issue executive orders. We should want to know how, as president, the Democratic candidates would wield this power. Last month, for instance, Sen. Kamala Harris tweeted that, as president, she would "give Congress 100 days to put a gun safety bill on [my] desk for signature." If Congress failed to do so, she would "take executive action." What sort of executive action would she take? Does she believe, as president, she could impose an executive order as broad or as wide-reaching as any law imposed by Congress?
Such executive orders would certainly face legal challenges. The Trump administration's own regulatory decision to ban bump stocks was quickly challenged and continues to be litigated in federal court. Would Democratic candidates implement a similar regulatory strategy? Presidents appoint numerous senior officials to the Department of Justice. If the bump stocks case remains unresolved under a Democratic administration, would these new senior legal officials continue the charge? The Trump administration has been routinely criticized for its eagerness to reverse legal arguments raised during the Obama administration. Would a Joe Biden administration just as quickly return to Obama-era positions?
Beyond inherent powers, candidates have spent little time discussing roles specifically tasked to presidents by the Constitution. Consider the president's power to nominate high-level federal officials and judges. Who would Sen. Elizabeth Warren nominate to lead the Department of Health and Human Services if she becomes president? Who would Sen. Bernie Sanders tap to run the Department of the Treasury if he does? Criminal justice reform has been a hallmark of Sen. Cory Booker's platform. Would he pledge to name an attorney general who has experience as a public defender or serving nonprofit legal clinics?
As the third branch of government, the judiciary often gets third-rate consideration on the campaign trial. That was different in 2016, and now President Trump and Senate Republicans often cite the confirmation of dozens of federal judges as their greatest political achievement. But the only real discussion of the judiciary among Democratic candidates has concerned proposals to add seats or set term limits on the Supreme Court, even though the former holds bipartisan opposition and the latter would require amending the Constitution.
Federal judges serve for life and the ramifications of their decisions will last well beyond any one administration. But in the July debates, no Democratic candidates were asked about the judiciary. Yet over the same 48 hours, the Senate confirmed an additional 13 federal judges. Candidates should consider this disconnect. And in the next round of debates, they should tell us whether they have a draft list of qualified candidates for the Supreme Court, just as Trump did when he was the GOP nominee.
The presidency is a unique and powerful role. Yet too often, platforms and campaign promises sidestep the important constitutional responsibilities of the commander in chief. In addition to legislative priorities, candidates should answer how they intend to use the powers of the presidency. Doing so will be helpful for voters and perhaps cast a wider and more recognizable divide between the current presidential nominees.