*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by William Marshall, ACS Board Member and Kenan Professor of Law, University of North Carolina School of Law
The subject of this essay may seem nostalgic to some; the constitutional implications of the congressional obstruction that plagued the Obama Administration during six of its eight years in office. After all, we are now living in a period of an ostensible united government under a Trump presidency and a Republican Congress, a phenomenon that, as other writers in the Symposium point out, raises its own set of constitutional concerns.
Nevertheless, the problem of Congressional obstruction is one that is likely to return to the constitutional landscape. The country’s equally divided electorate, combined with the nation’s intense polarization means that we can fully expect future episodes of divided government and more prolonged periods when the Congress, no matter which party controls it, will be intent upon using whatever tactics may be available to frustrate the agenda of an opposing party’s presidency.
President Obama’s response to congressional obstruction was to adopt a “we can’t wait” strategy under which he strived to pursue as much of his agenda as he could unilaterally, without waiting for Congress to assent. That approach, however, generated serious criticism on the grounds that it exacerbated an already dangerous trend of centering too much power in the presidency. Congress, after all, provides the primary bulwark against presidential overreaching; and the argument that the presidency should assume more power because Congress is using its prerogatives to check executive authority seems exactly backward. If Congress is to serve its checking function, it would seem that, at the least, it should have the authority not to accede to executive branch direction. At least at one level, then, Congress has, and should have, the power to do nothing.