Some branches are more equal than others

When I train people on how to use a new piece of equipment, I usually tell them that regular maintenance is the key to understanding how the equipment really works. The more that they work with the equipment, the more likely it is that they will understand the inner workings, which makes them better at troubleshooting and dealing with problems down the road. Put another way, the condition of their equipment is usually the inverse of the condition of their O&M manuals; a manual that's been bookmarked, highlighted, beaten up, and annotated is probably one that's being used, while a pristine set of manuals usually indicates a disaster in the field.

The same thing can be said of how we approach the Constitution. The more we wrangle with the text of the Constitution, the better off the condition of the system of government established by it.

Right at the moment, we're having just such a debate -- over whether the president has a right to speak to the assembled Congress. The answer is plainly "no". The president is required to report to Congress "from time to time" with "Information of the State of the Union", but that report isn't required to be delivered in person. The spirit of the requirement suggests it could be delivered in writing, in person, or via recorded message (though it probably cannot be adequately delivered through interpretive dance).

More importantly, the report on the State of the Union (whatever form it takes) is required because the President has a duty to report to Congress. It is strictly intended as a measure of accountability of the executive branch to the legislative branch, not as a mission statement for the executive branch to order the legislative branch which way to go. The Constitution says the President shall "recommend to their Consideration such Measures as he shall judge necessary and expedient". But a recommendation is a far cry from a mandate.

The President doesn't have the authority to order Congress to so much as turn up the thermostat, much less to force them to follow or enact an agenda. The fact that anyone would think otherwise exposes one of the great failings we've had with our Constitutional order for a good long time.

The problem isn't just the State of the Union, though the excessive ritual built up around it is a real symptom. The problem, rather, is the whole notion that a President should be elected on the basis of an agenda.

There's a fairly good chance that if you ask the average American which branch of government comes first in the Constitution, many -- probably a majority -- will assume that it is the executive. That, of course, isn't true; Article I establishes the legislative branch because it is the fountain of all political legitimacy. Without the legislative branch, we don't have the consent of the people to be governed.

There is a reason why Congress can fire the President through the impeachment process, but the President can't dissolve Congress. If you're in a relationship with someone who can fire you and to whom you are required to give an annual report, but whom you cannot fire nor demand a report of your own, then they're the boss and you're not -- even if you hold checks and balances against one another.

And, whether you like Speaker Nancy Pelosi or not, this is exactly why it is entirely within the purview of the Speaker of the House to refuse the President an audience in the halls of Congress.

Americans are probably more or less familiar with the idea that the President must in fact be invited into the chambers of Congress in order to give his address, but that isn't merely some archaic expression of good manners. It's an expression of primacy and of a power structure that means something to this day.

We've neglected this relationship for all together too long, and that is the fault of the Imperial Presidency.

But the Imperial Presidency isn't just a nefarious way to approach a legislative agenda. It's really undermined our whole view of how government is supposed to work. By making every Presidential contest into a battle of competing legislative agendas, we've begun to convince ourselves that the Presidency is where American ideas are supposed to originate.

It is far more important for the executive branch to stop bad ideas from moving forward (via the veto) than it is for the President or his subordinates to generate new ideas for our consideration. It wasn't right when President Obama threatened to circumvent Congress because "I've got a pen and I've got a phone". And it isn't right now, when President Trump insists that he must get funding for his pet project in order to end the shutdown of the Federal government.

As it was put in Federalist Paper No. 73: "The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones." The whole notion of giving the executive branch a check on the power of legislation is rooted in the idea that the President's primary role is to stop bad ideas from becoming law.

More than anything else, we as the American people hire a President in order to respond to the unknowns of life. That is where every President has either succeeded or failed, really: Not in their legislative agendas, but in the surprise turns of events that occur that they never could have known about prior to their entering office.

Jimmy Carter was undone by the Iran hostage crisis. Ronald Reagan was immortalized by the success of his relationship with Mikhail Gorbachev. George W. Bush, of course, had 9/11. It's the unknowns and, more specifically (with apologies to Donald Rumsfeld), the "unknown unknowns" for which we hire a national chief executive.

The whole idea is that we hire someone with virtues like judgment, wisdom, curiosity, and humility. Someone who will address those unprecedented, unpredictable, sometimes immeasurable surprises with a sense of calm and wisdom.

And so, if it takes the President being barred (almost certainly just temporarily) from addressing a joint assembly of Congress in order to deliver the 2019 State of the Union Address to shake us from this unwitting slumber and make us dust the cobwebs off of our Constitutional understanding then, perhaps, so be it. It's time to for each of us to go back and scratch some notes on our copies of the national rulebook.

We need to be reminded once in a while that one branch is answerable to another -- they are co-equal and checks and balances are woven among all three. But some branches are more equal than others, and the legislative branch is the most equal of all.

Brian Gongol

Brian Gongol

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