Sen. J.D. Vance (R–Ohio) attempted to shield the Trump administration from criticism during the vice presidential debate on Tuesday by claiming that Congress was not “doing its job.” Vance complained that Congress is not a “high-class debating society” but “a forum to govern.” Congress has resembled the former more than the latter for decades.
Vance was responding to a question about his past disparagement of former President Donald Trump’s failure to deliver his promised agenda of economic populism. After admitting to changing his mind about Trump, Vance pivoted to blame Congress for not cooperating with the Trump administration’s legislative agenda. According to Vance, legislators were too busy “whin[ing] about problems” to pass bills on “on the border [and] on tariffs.”
Congress’ inability to legislate substantive issues has contributed to the ongoing immigration crisis. As Minnesota Gov. Tim Walz pointed out during the debate, immigration policy must be “done by the legislature—you can’t just do this through the executive branch.”
Both the Trump and Biden administrations have tried. In January 2017, Trump called for the construction of a physical wall along the Mexican-American border in an executive order. More recently, the Biden-Harris administration took action in June to limit asylum claims by migrants crossing the southern border.
That’s how most big policy issues are resolved these days: by the executive branch, not Congress. It’s a trend that began with the 1946 passage of the Administrative Procedures Act, which granted executive agencies the power to issue “substantive rule[s] or order[s]…within jurisdiction delegated to the agency.”
As the executive branch has grown more powerful, lawmakers in Congress have become less productive. In 1973, Congress passed 772 bills. Fifty years later, it passed 47. Over the same period, the number of rules in the Federal Register has ballooned from 470,561 to 1,091,863, according to QuantGov, an open-source policy analytics platform published by the Mercatus Center.
These days, Congress struggles to pass the mandatory legislation that funds the very agencies to which it delegates power. This year was the sixth year in a row that Congress has failed to pass a single appropriations bill to fund the operations of the federal government. Vance’s confidence in Congress acting as a serious legislative body is difficult to believe given his first-hand experience with its ineptitude and the sheer size of the executive branch.
There’s ample reason to believe Vance is not genuinely invested in restoring Congress’ ability to govern; he encouraged conservatives to seize the administrative state and use it “for [their] own purposes” when running for the Senate, Reason’s Stephanie Slade reports. Vance specified that some of these purposes include punishing private institutions promoting “radical left-wing ideology” in a September 2021 Tucker Carlson interview.
Congress is and should be a debating society, but not the kind it currently is: a forum to publicly score points on political opponents to bolster reelection campaigns. Instead, legislators should vigorously debate the merits of bills to work out disagreements, seek compromise, and craft legislation that responds to the concerns of their constituents. If we accept Congress as the former instead of the latter, we should not be surprised when politicians—Republicans and Democrats alike—leverage the administrative state to pass substantive policy by fiat.
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