by William Marshall, 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.

But the problem of congressional obstruction that President Obama faced also has serious constitutional overtones. While accumulating too much power in the presidency creates the danger of tyranny coming in through the front door in the form of an imperial presidency, a dysfunctional government that does not respond to the needs of its citizenry creates the danger of tyranny coming in through the back, as a society that has lost faith in its institutions is vulnerable to totalitarian appeals and intervention. The Constitution, arguably, was concerned with both types of threats. The Framers, of course, famously designed the Constitution to foster a system of check and balances in which none of the three branches would be able to amass and exercise too much power. But the Framers also endeavored to create a Constitution that would work. Congressional action (or inaction) that imperils the ability of the government to function, then, also raises constitutional concern.

The problem is determining at what point Congress’s proper constitutional exercise of its checking function turns into improper congressional obstructionism — a problem that is no doubt exacerbated by the fact that the constitutional goals of checking power and simultaneously allowing for effective use of that power are inevitably in tension. A president focused on making government work will be motivated to take actions that circumvent Congressional blockage. A Congress intent on blocking the president will take actions (or non-actions) that could lead to situations in which government is disabled from accomplishing its basic functions.  (Consider, for example, the battles over whether Congress should raise the debt ceiling in order to pay for its already-accumulated debts.)

Further, any attempt to draw a line between Congress’s appropriate exercise of its checking function and improper obstructionism will necessarily be hampered by the difficulty in overcoming partisan perspectives. Many who saw the Republican Congress as obstructing the agenda of President Obama might very well point to the use of those same tactics to combat the agenda of President Trump as examples of Congress’s acting according to its highest calling.  Conversely, many who saw the Republican efforts to battle President Obama as examples of Congress’s acting appropriately might very well see similar Democratic efforts opposing President Trump as obstruction. (In fact, the Senate Majority leader and principal architect of the Republican efforts to frustrate President Obama’s presidency has made exactly this claim.)  Distinguishing between partisan and constitutionally-based criticism of congressional inaction is therefore unlikely to be easy.

These concerns notwithstanding, some commentators have strived to find a constitutionally-based obligation for Congress to act based on a variety of approaches, including political science, civic republicanism, fiduciary duty, history and constitutional structure. None to date, however, have taken hold. Yet the project is critical for a number of reasons. The first is the most basic.  Federal government dysfunction can threaten the provision of basic services and national security (as could occur in the case of a government shutdown). Congressional inaction can therefore literally place the nation at risk.

Second, a theory of a congressional obligation to act may be necessary to prevent the further expansion of presidential power. There is, after all, irony in the use of congressional obstruction as a weapon against presidential overreach. The lesson of history is that, in the long run, congressional obstruction tends to empower the presidency rather weaken it. In part this is because of the truth in the old maxim that power abhors a vacuum. And in part it is true because when only the presidency is able to take major government action, the expectation is that the presidency is the appropriate branch to take major government action. Finding constitutional limits on Congress’s power to do nothing, in short, may paradoxically serve to increase, rather than lessen, Congressional power.

Third, and more pragmatically, a theory of a congressional obligation to act may be necessary to provide a constitutional backstop against further dysfunction. At present, the pressures of polarization are so forceful that even members of Congress who might otherwise work across the aisle are deterred from doing so. In such a political environment, where politicians need excuses to work with each other, setting a constitutional standard for congressional behavior might provide some political cover for bipartisan action.

Accordingly, it is worthwhile to make yet one more attempt at establishing that Congress can have a constitutional duty to act, at least in some circumstances. The approach that I suggest would examine Congressional non-action in relation to the specific congressional power involved, rather than offer a more global theory of congressional behavior. Congressional failure to use its powers in areas that are necessary for government to function, such as its budgetary powers or, in the case of the Senate, its advise and consent authority, should be treated differently from areas in which the Congress simply refuses to sign on to a president’s particularly policy agenda, such as considering new legislation. In the former instances, the ability of the government to function is placed in jeopardy by congressional inaction. In the latter, the government’s functionality is not normally threatened by the absence of new legislation.  Accordingly, the former non-actions might be considered unconstitutional abdications of congressional responsibility while the latter viewed as appropriate exercises of Congress’s checking function.

There are obvious line drawing problems in such an approach; the question as to what kinds of inaction threaten the government’s viability is not susceptible to easy answers (for example, many might argue that budgetary questions are at least as much policy concerns as they are matters of government functionality.)  Further, there are definitional issues as to what would constitute improper obstruction. Presumably, a refusal by Congress to meet with a president to discuss a budget might be considered obstruction; but would (or should) the failure to come to agreement with the president be considered congressional obstruction if the failure to agree is based in good faith? Finally, even if workable lines could be drawn, there remain questions of enforceability. Should congressional obstruction be a matter for the courts or is it one in which the role of the constitutional claim is to inform the political rhetoric that accompanies inter-branch disputes? And if only the latter, can it be expected that it will it have any effect in the contemporary political climate?

These are serious concerns. Yet if we are to begin to overcome the fault line in our constitutional structure that has been exposed by congressional obstruction, understanding the problem of congressional inaction by reference to specific congressional powers may offer the appropriate starting point.