What Congress Should Do
Ten bills Congress should insist be part of any deal to fend off a White House power grab
This week I am going to sketch how Congress can use its power to push back against the Trumpist movement, which over the last four weeks has worked assiduously to vest unfettered power in the hands of President Trump and his billionaire allies.
Placing a man like Trump in high office would always have been a threat to the rule of law, as we saw in his first term, but the decades-long efforts by members of both parties to empower the presidency at the expense of Congress and the courts, and the joining of forces with the technology robber barons, has made the danger existential to American democracy.
I'm going to briefly sketch out where we are now and then turn to ten laws Congress should demand as part of any debt or appropriations deal. In a future issue I will discuss what Members of Congress can do individually or in groups to support democracy.
Where we are now
We are at the post-democracy transition. I realize that many of you may not be there with me on that conclusion, but I ask you to stick with me as I spell out what Congress should do to restore political balance to our system of government. If you agree that separation of powers is being seriously tested by the moment, this is still worth your time.
The courts are too slow to check Trumpism, many jurists are aligned with presidentialism, and a rising number are aligned with Trumpism. As of 2021, Trump alone appointed "three of the nine sitting Supreme Court justices, 30% of the nation’s active appeals court judges and 27% of active district court judges." With a compliant Senate, we can expect those numbers to increase. In addition, Trump has shown the inclination and willingness to defy judicial orders.
Trump is also attacking independent sources of power and accountability. He just issued an Executive Order that claims to expand presidential powers to encompass independent agencies. He also has fired senior officers at the Office of Government Ethics, the Office of Special Counsel, 18 inspectors general, the Merit Systems Protection Board, the Federal Labor Relations Authority, the National Archives, and the Consumer Financial Protection Bureau.
Trump has moved to unlawfully terminate thousands of recently hired federal employees. He is working to strip worker protections for thousands more. His administration forced the public integrity unit at the DOJ to drop charges against New York's mayor for an apparent political quid pro quo for attacking immigrants, prompting a half-dozen prosecutors to resign rather than violate their oaths. He also has fired federal employees he alleges are entangled in DEI, part of a three-step plan to eliminate any federal employees that can be tied to diversity initiatives. Altogether this is a de facto purge of the civil service to remove anyone who might resist his authority so that he can help his friends and harm his enemies. Speaking of enemies, he is also attacking the press in actions ranging from banning disfavored journalistic outfits (like the AP) to having the FCC investigate outlets like PBS and NPR.
In addition to all that, Trump has indicated he seeks to overturn the 1935 Supreme Court ruling in Humphreys' Executor, which upheld the independence of many federal agencies such as the FTC, the FCC, and so on. You can read more on the background from the unanimous 1935 Supreme Court opinion, which held that "no removal can be made during the prescribed term for which the officer is appointed except for one or more of the causes named in the applicable statute." Instead of asserting indirect influence over institutions like the Federal Reserve and independent agencies, Trump would have direct control over personnel, and personnel is power.
Soon enough we will see lawfare attacks on non-profit organizations and the targeting of individuals. We already see that on social media.
It will take a political movement to resist the collapse into despotic authoritarianism, but there are still things to be done within the system to slow the fall and cushion the landing. The apparent need to raise the debt ceiling or default on the U.S. debt (causing economic calamity) and the need to pass spending bills by March 14th to avert a government shutdown provide opportunities for legislators to demand provisions that bolster the independent institutions of government.
Congress can still adopt narrow bipartisan measures that provide significant support to democratic values. I can imagine legislation that protects veterans services, privacy, civil rights, and so on. But the measures that get at separation of powers – the Trump administration's assertion of unitary powers – will require a crisis where Congress insists on its prerogatives and the White House either must acquiesce or be overridden.
In addition, just as Trumpism is a political movement centralizing power in the hands of President Trump, so too can there be a movement to oppose vesting powers in the hands of a single individual. (Let's call it pro-democracy, shall we?) Many countries have broad movements to oppose authoritarian regimes that span ideological and class lines. Members of Congress, who enjoy immunity from prosecution for their work in Congress, could lead the effort to develop messages and be the voice of democracy.
Let's talk about the price that members of Congress could extract for avoiding debt default and passing a budget. Next time we'll talk about Congress as a bully pulpit.
What Congress should demand
Let's assume that (1) Democratic leadership is willing to fight and (2) able to hold their party together so members can't be picked off. (Yes, these are open questions, but let's assume they can meet the moment.) What should they demand in these must-pass bills that (some) Republicans might be willing to acquiesce to or even support?
A good place to start is existing legislation that addresses key vulnerabilities in our democracy and that (often) has existing bipartisan support. Many of these bills should have become law years ago. These are not anti-Trump measures, but rather pro-Congress and pro-accountability proposals.
Here's a top ten list with citations of existing legislative language and co-sponsors from current or prior Congresses. Buckle up:
1. Declarations of National Emergencies Should Be Approved by Congress
Congress delegated broad emergency powers to the president. Over a 46-year period, the administration has declared 79 states of national emergency, 43 of which are in effect today. The Brennan Center's Liza Goitein, who conducted a two-year research project into the legal framework for national emergencies, testified "The powers triggered by a national emergency declaration include authorities that are highly susceptible to abuse. They could be misused to undermine our democracy—and they already have been exploited, by presidents of both parties, to implement long-term policy goals in the face of congressional opposition or inaction."
The ARTICLE ONE Act (H.R. 3988, S. 1912), led in the House by Chip Roy and Steve Cohen, and by Mike Lee and Richard Blumenthal in the Senate, would address this issue by terminating a presidential declaration of a national emergency after 30 days unless Congress passes a joint resolution approving the declaration.
Similar language was included in the National Security Reform and Accountability Act/ National Security Powers Act (H.R. 5410, S. 2391), introduced by Mike Lee and Chris Murphy in the Senate and Peter Meijer (Nancy Mace is the next identified R co-sponsor) and Jim McGovern in the House. That legislation also reforms the War Powers Resolution so that Congress may effectively disapprove of the introduction of U.S. forces into hostilities.
2. National Guard Should Not Be Used for Political Suppression
The U.S. National Guard has a specific and important role to play and they should not be abused for improper domestic deployments, such as to suppress protests and political dissent. Accordingly, the law should be restated to prevent misuse from recurring and require that the chief executive of the sending and receiving state consent to the use of the national guard.
The House passed Section 504 of the 2022 National Defense Authorization Act to put in place this limitation, and Rep. Mikie Sherrill has reintroduced legislation (H.R. 590) to put it into effect.
3. Protect Congress's investigatory and research capabilities
Congress is served by support offices and agencies that enable its oversight and legislative responsibilities. Among the major agencies are the Government Accountability Office (for investigations and spending oversight), the Library of Congress (for research), and the Government Publishing Office (for document preservation). For anachronistic historical reasons, the heads of these agencies are appointed by the President and only recently became subject to Senate approval. By comparison the Capitol Police Chief, Architect of the Capitol, and Congressional Budget Office heads are appointed by Congress. To ensure accountability to Congress and a proper principal-agent relationship, all legislative branch agency heads should be appointed by Congress for a term of office.
Section 5702 of Public Law 118-31 changed the mechanism by which the Architect of the Capitol is appointed to be a majority vote of a congressional commission consisting of each chamber's political leadership, the chair and ranking members of each chamber's appropriations committee, and the chair and ranking member of the House Administration and Senate Rules Committees. The same structure should be enacted for the Library of Congress, GPO, and GAO, except that House Oversight and Government Reform / HSGAC should be substituted for Administration/Rules for GAO as it is subject to their jurisdiction.
4. Bolster GAO's ability to conduct oversight on behalf of Congress
The Government Accountability Office plays a critical role in Congressional oversight of the Executive branch and has statutory authority to conduct oversight of all agencies. One area where the Executive has vigorously pushed back against this oversight is in the realm of the intelligence agencies. As Kel McClanahan has explained in his excellent testimony, Congress has repeatedly pushed back to officially clarify GAO's authority, including adding strong language in the FY 2010 Intelligence Authorization bill. The language remains unenacted, however, and agencies like the CIA generally refuse to cooperate with GAO.
Section 335 of the FY 2010 Intelligence Authorization Act, as engrossed by the House of Representatives, should be enacted into law. This would provide the GAO with access to all information the GAO determines necessary to conduct an analysis requested by a committee of Congress with jurisdiction over such program or activity, with limited exceptions.
5. Protect Congress's ability to hear from whistleblowers
One of the key mechanisms to shed light on government misconduct is for whistleblowers to communicate directly to Congress. Unfortunately, whistleblowers who do so are often subject to retaliation. Four bills can help facilitate whistleblower communications to Congress and protect them from retaliation.
The Congressional Whistleblower Protection Act of 2024 (S. 4655), introduced by Sen. Blumenthal, allows federal employees who have been retaliated against for communicating with Congress to seek administrative remedies and, should there be no remedy within 210 days, to be able to bring a private right of action in federal court.
The Expanding Whistleblower Protections for Contractors Act (S. 1524), introduced by Sens. Braun and Blumenthal, expands whistleblower protections to include federal contractors who disclose waste, fraud, or abuse in federal agencies. It prevents the waiver of whistleblower protections by NDA or other conditions of employment, prevents retaliation for refusing to perform actions they believe are illegal, and declares executive branch officials cannot request contractors retaliate against whistleblowers and allows for agencies to discipline officials who order retaliation.
The Whistleblower Protection Improvement Act of 2021 (H.R. 2988), introduced by Rep. Maloney (next lead sponsor is Gerald Connolly) and Rep. Nancy Mace, provides a wide range of protections to whistleblowers, including protecting their right to give information to Congress and prohibits employees from disclosing the identity of whistleblowers to individuals outside government. Notably whistleblowers can request the Merit System Protection Board direct corrective action in the case of retaliation and may file an action in court if the MSPB does not render a final decision within 180 days. This is relevant as the Trump administration is eviscerating the MSPB.
Finally, the Senate should establish an Office of the Senate Whistleblower Ombuds modeled after the one that exists in the House of Representatives (H. Res. 6). That office develops best practices for whistleblower intake for House offices and provide trainings to House offices on
how to safely receive information from whistleblowers.
6. Protect the press from White House efforts to unveil whistleblowers
The First Amendment exists to protect journalists’ ability to publish information, which authoritarian regimes often work to choke off. One mechanism authoritarians use is to try to force journalists to disclose who contacted them or to spy on the technology they use (like phones and email) to both reveal their sources and intimidate sources from reaching out in the first place. The government should not be able to surveil journalists, or the tools they use, without first obtaining a warrant.
The PRESS Act (H.R. 4250, S. 2074), passed by the House and favorably reported out of committee in the Senate, would extend the same kind of protection to journalists from the federal government that already exists in 49 states. Specifically, that government efforts to spy on them or their tools must be approved by a court and is permissible only in limited circumstances.
7. Protect Inspectors General, our independent federal watchdogs
The roughly eighty federal inspectors general are watchdogs established by Congress and embedded in federal agencies and root out waste, fraud, and abuse. Among other things, they take in complaints from whistleblowers and ferret out illegal activity. The laws protecting them are somewhat weak, requiring the administration to give Congress notice and a thorough explanation 30 days before a firing and that it can only be done for cause, but the Trump administration did not even follow that procedure.
There are a number of steps Congress should take to protect and expand the power of Inspectors General.
> IGs can only be removed for cause
Inspectors General must be independent of the agencies they oversee. One mechanism to bolster independence is to ensure IGs can only be removed for cause. This prevents their removal for conducting investigations that are politically sensitive and provides them additional freedom to make recommendations.
Section 102 of the Inspector General Independence and Empowerment Act of 2021 (H.R. 2662), which was introduced by Rep. Maloney and passed the House, allows for the removal of an inspector general prior to the expiration of their term only on the basis of permanent incapacity, inefficiency, neglect of duty, malfeasance, conviction of a felony or conduct involving moral turpitude, knowing violation of a law, gross mismanagement, gross waste of funds, and abuse of authority.
> The Courts appoint acting IGs
When an inspector general is removed, an acting inspector general serves in that role. An office led by an acting IG can hamper its effectiveness because an acting IG cannot do everything that an appointed individual can do. They may have their independence called into question because they are "auditioning for the role of permanent IG," creating an inherent conflict of interest. In addition, the president has somewhat wide discretion in who can be appointed to serve in an acting capacity. To protect the integrity of the IG offices, that discretion should be narrowed.
The Federal Vacancies Act should be updated, per a recommendation from the Project on Government Oversight, to vest the Council on Inspectors General for Integrity and Efficiency (CIGIE) with the temporary appointment power. As a backup in case that process is struck down by a court, Congress should allow for the designation of certain federal judges to appoint acting IGs from a list of candidates maintained by CIGIE. This mirrors the model for appointing temporary U.S. attorneys. This would ensure their qualifications and independence.
> The IG investigates attorney misconduct issues at DOJ
The Department of Justice Inspector General should be empowered to investigate attorney misconduct at the Justice Department instead of having that function housed in the Office of Professional Responsibility. The DOJ is the only agency where the IG lacks this authority and would ensure uniform oversight across the agency.
Inspector General Access Act of 2024 (S.3813, HR 3064), sponsored by Sens. Lee and Durbin and Reps. Issa and Ross, would provide the DOJ IG this authority.
> Establish an IG for OMB
The Office of Management and Budget is at the heart of any administration's efforts to control federal agencies and set federal policy. Congress should create an IG for OMB because, in the words of Rep. Foxx, "an IG at OMB would be able to root out this kind of fraud, waste, and abuse and save taxpayers’ dollars"
Amendment twelve offered by Rep. Foxx to H.R. 5314 to establish an OMB IG was adopted by the House of Representatives in December 2021.
8. Shed light on final, authoritative interpretations of law
The Justice Department's Office of Legal Counsel promulgates opinions that have the force of law in the executive branch and are precedential, but often are kept secret from Congress and the public. These opinions at times secretly interpret the law in ways that Congress did not intend and they serve to insulate government officials from prosecution for following their dictates. The consequence is a series of opinions that lean in favor of the Executive branch and, when they have come to light, had to be withdrawn because they were legally untenable.
The DOJ OLC Transparency Act / SUNLIGHT Act (S. 3858, H.R. 7619) would shed light on OLC opinion by requiring the Justice Department to publish those opinions on its website within 48 hours of issuance and to publish the back catalog of OLC opinions, with limitations on publication as appropriate.
9. Strengthen the Freedom of Information Act
The Freedom of Information Act is a key mechanism by which the public, the press, and civil society obtain information about the operations of the federal government because it provides an opportunity to sue in federal court should agencies fail to produce records. However, recent court interpretations have weakened the reach of the statute and more should be done to ensure that records discovered through FOIA are available to all.
The Open and Responsive Government Act (S. 1812), introduced by Sens. Chuck Grassley and Peter Welch, would address the Supreme Court's Argus Leader decision by restoring the scope of FOIA's exemption 4. This would mean the definition of "confidential" commercial information that can be withheld from disclosure may only be withheld if disclosure is likely to cause substantial harm to the competitive position of the person from whom the information was disclosed.
Title seven of the Transparency in Government Act of 2024 (H.R. 8597), introduced by Rep. Mike Quigley, contains a number of FOIA provisions that should be written into law. Section 701 requires all FOIA requests sent to an agency and responses from the agency be published online. Section 702(a) requires the proactive disclosure of certain records by an agency including unclassified reports submitted to Congress by the head of the agency, a log of all FOIA requests, and reports or memoranda used to make a final policy decision. Section 702(c) allows members of the public to sue for online publication of records they otherwise have a right to access. Section 703(d) requires agencies to undertake a public interest balancing test when making a determination on whether to withhold a record.
10. End the Debt Ceiling
Hitting the debt ceiling provides an opportunity for Members of Congress to demand the passage of executive branch guardrails, but the debt ceiling itself is a danger to our country. Demagoguery around the limit has created repeated fiscal showdowns that endanger the stability of the dollar and financial markets. Since it must be addressed anyway, now is the time to eliminate it.
The End the Threat of Default Act (H.R. 415, S. 1190) would repeal the statutory debt limit. It was introduced by Rep. Foster (next co-sponsor is Don Beyer) and Sen. Schatz.
That's not all
There's more that Congress can do if members are willing to use their power of the purse and change their rules. Using those powers can get at issues like who will be appointed to run agencies and what arguments the Trump administration can make in court. The point of today’s top ten list is to point out existing legislation that Congress already has considered and that a majority could agree to without blinking. Should members wish to lean forward and innovate, the playing field opens up.
The challenge of authoritarian movements cannot be addressed only by the passage of laws. The administration has shown it is not bound by legal or political precedent. It is moving rapidly to consolidate power through unlawful means and assertions of unconstitutional legal theories. Should the courts shoot down independent agencies or deny citizenship under the Fourteenth amendment, which are long standing precedents, we will know the courts have been captured.
The response to an authoritarian political movement is to create a pro-democracy movement. Indeed, it is the very mechanisms of our democracy – a free press, free elections, freedom from political violence, a fair and impartial bureaucracy – that Trump is working to dismantle. We need to bolster those institutions and create solidarity between people who object to this administration's authoritarian power grabs. Members of Congress have a key role to play in that.
It is that topic I will take up in a future newsletter.