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The contemporary presidency: executive ambition versus congressional ambivalence.

Despite my misgivings, I have acquiesced in some of the administration's proposals [on the Patriot Act] because it is important to preserve national unity in this time of national crisis and to move the legislative process forward.

--Senator Patrick Leahy (D-VT, U.S. Congress 2001, S. 10548)

Five previous Presidents have had this {fast-track/trade promotion} authority. What has happened to us? Well, we import more and we export less and the trade deficit rises. We talk in this bill about displaced workers ... I am pretty sure they are some of the folks in my district who are losing their jobs.

--Representative Charles Norwood (R-GA, U.S. Congress 2002, H. 5973)

Virtually every problem we've encountered [in Iraq] was predicted before the war by this committee, by outside experts... The administration was dead wrong in its assumptions... But now what do we do?

--Senator Joseph Biden (D-DE, U.S. Congress 2004a, 3)

I don't trust this {Base Realignment and Closure} process. Some people say if you do the commission, it takes it out of politics. Who believes that?

--Senator Trent Lott (R-MS, U.S. Congress 2004b, S. 5573)

So ... we have a political gun at our heads that we can't afford to say that we know better [on the Troubled Assets Relief Program].

--Representative Charles Rangel (D-NY, U.S. Congress 2008a, H. 10756)

Congress does not have a clear and consistent view of its role in the separation of powers system. Sometimes members describe their own institution as having a pathological inability to deal with an important national issue, but at other times, even regarding the same issue months or years later, members argue the opposite and say that Congress actually does have a key role to play. This article shows how and why Congress is particularly ambivalent about delegating authority on issues that address the national interest but have local consequences and on issues that pressure members to act quickly to stem a "crisis." This pattern, which I call the cycle of ambivalence, is reflected in a cycle that has different permutations in each area, but generally follows a rhythm of delegation of power, followed by expressions of regret, followed by more delegation.

In the first part of the cycle, members of the House and Senate vote to give up member, committee, or majority party power over policy making, often in response to presidential calls for reform or quick action. During this time, which can be crisis driven or a response to perceived congressional paralysis on a long-standing issue, members openly discuss Congress's strengths and weaknesses in dealing with the policy dilemma at hand, as well as the merits of the traditional legislative process that allows Congress to delay, change, and deliberate over different alternatives. In the second part of the cycle, months or years later, after the delegation has expired or in a critical reaction to the president's or another entity's use of the delegated power, individual members launch a barrage of attempts to oversee, delay, or undermine the decisions stemming from the delegation, even if the members supported the original transfer of power. Yet these efforts to regain leverage over the policy usually have limited or temporary success. In the third part of the cycle, when a new iteration of the same policy problem resurfaces, members opt to delegate power again. This cycle has played out in different ways in recent decades.

There are multiple forces driving each part of the cycle of ambivalence, as seen in the epigraphs at the beginning of this article. Debates for and against delegating power show that members of Congress, like the president, have different "hats" that are often at odds. Senator Patrick Leahy expressed hesitance in his support of the Patriot Act, pushed by an opposition-party president, but will go along with it in the best interest of the nation as he sees it. By contrast, Republican representative Charles Norwood opposed a new round of fast-track authority for President George W. Bush, as he implies, in a locally sensitive protest against the national trends of free trade long championed by his party. Controversies after delegations of power have passed often fall along the lines of Senator Joe Biden's frustration with President Bush's management of the Iraq invasion, which Senator Biden voted to authorize despite his and others' skepticism of the war plan and rationale. Likewise, Senator Trent Lott, who had voted for the fifth round of a Base Realignment and Closure commission in 2001 as one title of an omnibus defense authorization, spent the next few years openly trying to undermine the commission's work. Despite a problematic policy record, delegation pressure can work. With low presidential approval and a Democratic-controlled Congress at the end of the Bush years, Representative Charles Rangel, chair of the House Ways and Means Committee, implied that the Wall Street meltdown of 2008 called for White House leadership at the expense of Congress, even though the same administration repeatedly had been accused of fumbling previous delegations.

This article will (briefly) explore these and other institutional and political causes of delegation as well as the significant consequences of these actions. Through the cycle of ambivalence, Congress forfeits its role in shaping major policies to the president or some other entity that is not necessarily better prepared to see to the national interest, void of its own parochial interests or political motives. Members of Congress may hope that oversight and legislative sunsets give the institution a reserve of power to address problems stemming from delegation, but it turns out that oversight is much more complex than it appears, especially if the executive branch is uncooperative or if vigorous public criticism does not make the leap into new law. Therefore, Congress gives up its best chance to shape policy at the outset of the process, when it has the most leverage.

These possible outcomes of delegation are often predicted in the original decision as members--even ones voting in favor of the loss of power--express their trepidation and even anguish about the loss of power in committee hearings and on the floors in acknowledgment of the pressures of the moment. At the same time, there is a remarkable consistency in the ways in which members of the executive branch discuss their institution's unique electoral and institutional perch. Despite the uneven ideological, regional, and electoral support of the president and any given policy he prefers, he is free to speak for "the nation," without any objective evidence that his branch possesses an organic lock on good public policy on any domestic or foreign matter. In fact, recent studies of the George W. Bush administration show the extent to which the means and ends of presidential power can spark controversy (for a diverse sample, see Edwards and King 2007; Fisher 2003; Pfiffner 2009; Pious 2009; Yoo 2005).

In illuminating the origins and significance of congressional ambivalence, this paper makes three additional arguments. First, while conscious disregard of institutional power has long been a political and electoral strategy of members of Congress and leaders for a variety of reasons (see Arnold 1990; Epstein and O'Halloran 1999; Kiewiet and McCubbins 1991; Weaver 1986), we should not assume that Congress sacrifices power lightly. Members often say they will rely on oversight to get back power later (Aberbach 1990; Kriner 2009), but then complain bitterly that the executive or other agent is uncooperative down the road. And when the possibility for taking power back is clearly on the table, Congress does not grab what it could. This trend is visible in the Patriot Act's two rounds in 2001 and 2005-6 (Farrier 2007) and repeated in 2007-8 in Foreign Intelligence Surveillance Act reforms after the Democrats regained Congress.

Second, while parties have been revived in Congress (Cox and McCubbins 2005; Smith 2007), consistent institutional ambition has not, which reflects the long-standing complications and multiple commitments of party leaders (Mann and Ornstein 2006; Oppenheimer 1997). At the same time, Congress and the president often work closely together across party lines in times of unified and divided government, while Congress often demurs to presidents in unlikely moments on both foreign and domestic policy (Binder 2003; Jones 2005; Mayhew 1991; Rudalevige 2005; Thurber 2006). During Newt Gingrich's and Nancy Pelosi's tenures as Speaker of the House, they explicitly asserted that Congress can and should counter the president's agenda-setting and legislative powers, but in reality had a more mixed record of defiance and deference.

Third, to understand the heart of these tensions, the public legislative process is particularly revealing. In committee hearings and on the floors, delegation of power moments inspire House and Senate members to express their ambivalent views of traditional legislative power and constitutional authority. In oversight moments, there is often ample discussion of past and future policy as well as renewed discussion of the role of Congress and its institutional resources to articulate an alternative to the president's preferred policies. Even taking into account the hyperbole, pretense, and showmanship in congressional rhetoric, each part of the cycle is interesting in the ways in which members articulate their multiple political, institutional, and representative loyalties. Analyzing the connections between rhetoric, institutional development, and the constitutional order has become a cottage industry in presidency studies over the past 20 years (starting largely with Tulis 1987). Yet students of Congress have not paid much attention to congressional position taking in speech because "its importance exceeds its modelability" (Mayhew 2004, xvi).

Examples of the Cycle of Ambivalence in Action

The cycle of ambivalence helps to explain Congress's uneven institutional ambitions through five rounds of base closing commissions, three decades of fast-track trade implementation processes, post-9/11 legislation at home (intelligence policy) and abroad (Iraq War), and the creation and criticism of the Troubled Asset Relief Program (TARP) in 2008-9. The cases have not been selected to represent variation; rather, the goal is to illustrate a common phenomenon. These issues share common characteristics, as the first three are domestic/foreign hybrids with national/local consequences, and all four are areas in which both the president and Congress can claim explicit constitutional authority. Yet the issues and specifics of each phase vary enough to provide some leverage regarding the generality of the cycle.

Base Realignment and Closure, 1988-2005

The cycle of ambivalence concept offers a new perspective on the 20-year history of the Base Realignment and Closure (BRAC) commission process. Though the rationale and mechanics of the process have been examined well by others (Arnold 1990; Campbell 2002; Goren 2003; Mayer 1995), the complex before-and-after life of this series of delegation decisions deserves deeper attention. BRAC is a unique policy solution to a very complex problem of institutional differences on military policy. Two decades of base closure-related rhetoric reveals deep debates over the constitutional contours of the foreign and domestic powers of the Congress and the presidency, the difficult tug between the local and national responsibilities of members, and the assumptions of political and electoral bias in both branches. The dominant argument in favor of BRAC from the perspective of members was that of Representative Thomas Andrews (D-ME), who explained the need for the BRAC process after its third round in 1994, saying, "The reason is that for years and years, this Congress refused to allow the Pentagon to do what was in the national defense and security interests of this country, and instead put parochial pork-barrel interests ahead of national defense interests and prevented the Defense Department from doing what needed to be done and close obsolete military bases" (U.S. Congress 1994, H 3908).

Representative Andrews had a point, of course. The immediate cause of the initial delegation in 1988 was Congress's previous decade of institutional resistance to base closures desired by the U.S. Department of Defense. Although the first round took years of debate before it was approved, the commission model was deemed a success, and three more rounds were authorized in 1990, even though the future president, who would oversee the rounds authorized for 1993 and 1995, was anyone's guess at the time of passage. The fifth and final round was authorized in 2001. However, floor fights on the details before each round showed the continuing conflicts within the membership over this loss of power. After demanding a second bite of the policy apple in 1988, each BRAC round retained a symbolic after-the-fact gesture in the form of a "disapproval" process that required supermajorities in each chamber to override both the full commission outcome and the president's approval of the commission's list.

But ambivalence came through in other, more substantive ways. Although members of Congress were quick to identify their own pathologies to protect allegedly unneeded bases, the executive branch and even the commissions themselves were accused of playing politics with domestic military policy. For example, Representative Jim Courter (R-NJ) explained his support for the first BRAC in theory in 1988, but not in outcome in 1989: "I was one of those who voted in favor of setting up the Commission ... I believed then, as I believe now, that it was the only legitimate way to examine bases objectively. I assumed then, and I assumed up to about 3 or 4 months ago, that their work would be good, that their work would be honest and.., based on merit. I have come to the conclusion, however, after examining the base closure report carefully, after talking to people on the Commission, after talking to my colleagues who are aggrieved here today and after talking to people inside the Department of Defense and the Army that the base Commission's report is flawed in a number of areas, and indeed tragically flawed" (U.S. Congress 1989, H 6295).

In response to widespread criticism after the first commission, members tried to withhold appropriations to execute the closures, but that method was cut off in future rounds. In the second through fifth rounds, members tried to tie up the process by

preventing the confirmation of commissioners, sponsoring amendments to delay or cancel the round, altering the criteria for consideration, organizing local and national lobbying efforts, and publicly criticizing the president, secretary of defense, heads of the armed services, and the commissions themselves for political and regional biases. In the late 1990s, however, members found the easiest method of stopping the process--not approving it in the first place. Congress said "no" to a final Clinton round after he was accused of politicizing his part of the process by tinkering with the outcome of the 1995 round for electoral reasons related to base closures in Texas and California. In response to Defense Department requests for another BRAC in 1999, Senator James Inhofe (R-OK) reflected dominant sentiment in Congress when he said that "there will be no authorization of future base closings while [the Clinton] administration is in office" (Barone 1999, 27).

A few years later, Congress relented to President George W. Bush after 9/11. As in previous iterations of the pattern, from 2002 to 2005, members fought back against the process, but once again, it was too late to undo the delegation. Despite the seemingly overwhelming support for the massive defense authorization bill passed just three months after the attacks, the BRAC portion of the bill inflamed many members in both chambers almost immediately, as described by CQ Weekly years later in 2004: "Ever since the 2005 round of closures was authorized.., lawmakers have tried, and failed, to undo that decision. But every time they have stumbled, they have maintained hope there would be another opportunity to scupper what they see as mistaken policy" (Sorrells 2004, 647).

For example, in 2004, the House Armed Services Committee garnered a veto threat from President Bush after it reported out its Defense Authorization Act, including a unanimously approved proposal to delay the BRAC round for two years. The 2004 House bill to delay the process was sponsored by Gene Taylor (R-MS), who had voted for the National Defense Authorization Act in 2001, the omnibus law that authorized the 2005 round of base closings. But in 2004, he said of the proposed 2005 BRAC round, "My intention is to delay it, reduce it in size, or kill it" (Sorrells 2004, 647). An amendment to kill the delaying language lost on the House floor 162-259, a vote that included 103 Republicans even after President Bush's veto threat. In defense of the amendment, Taylor said that "the Constitution of the United States gives the elected Members of Congress the responsibility to provide for an Army and a Navy. Every person in this body was elected to fulfill those requirements. I did not come here to delegate my responsibility to some bureaucrat to decide where or when bases should be closed. If Members want to give away their responsibilities, they should not seek this job" (U.S. Congress 2004c, H 3411).

After years of similar delay tactics in the Senate, the fifth BRAC round wrapped up in late August 2005, with the commission's list closing 22 major bases, realigning 33 others, but sparing more than a dozen more (U.S. Congress 2005a, S 8650). In October, the House voted 324-85 against a disapproval resolution sponsored by Ray LaHood (R-IL) to stop the BRAC round. While it was soundly defeated, this was the largest disapproval rate of the commission history. LaHood was supported by majority leader Tom DeLay (R-TX), who dismissed the expertise of the commission's "bean counters" (Scully 2005).

In these ways, the cycle of ambivalence in BRAC also shows how institutional policy challenges and responses bleed from one presidential and congressional era to another. The commission idea was first raised in the mid-1980s, during the Cold War and a period of divided government, and ultimately passed in 1988 by a Democratic Congress in the immediate aftermath of the Iran-Contra investigation and a procurement expense scandal at the Pentagon at the tail end of Ronald Reagan's administration. The second, third, and fourth rounds, which took place in the 1990s, occurred under very different political conditions under Presidents George H. W. Bush and Bill Clinton, as well as a dramatically altered post-Cold War order. The fifth round was approved in the shadow of 9/11. Ironically, the first commission did not see its value in the future and recommended that future closings be worked out by the Department of Defense and Congress together: "While an ad hoc commission similar to the present one may be useful, from time to time, in dealing with extraordinary problems of government, such an arrangement should not become a routine means for evaluating bases or addressing other subjects that are part of the day-to-day business of governing" (U.S. Department of Defense 1988, 31).

Fast-Track/Presidential Trade Promotion Authority

"Fast-track" trade implementation history is similar to BRAC and tells an equally revealing story about contemporary separation of powers arrangements. Both are legislative bypasses to help ease long-standing representative and legislative tensions. With trade, regionally clustered members and their constituents have favored more protectionist legislation in recent decades to promote local industry, workers' rights, and certain environmental interests, while other regions of the country have supported fleer trade without such restrictions. Despite partisan divisions on trade in Congress, until President Barack Obama, presidents of both parties generally favored the free side of the trade spectrum and pushed fast-track authority as a method of influencing legislative outcomes. Fast-track takes away members' powers to gut trade agreements by eliminating extended debate, disallowing floor amendments, and mandating an up or down vote to implement. After its creation in 1974, fast track was not controversial until the 1990s, and members let it expire between 1994 and 2002 and three controversial agreements.

The 1970s era of bipartisan support for new trade agreements was summed up by Senator Russell Long (D-LA) at the conclusion of its first use in 1979: "The bill is a product of a unique experiment in cooperation between the Congress and the executive branch. For the first time, Congress was consulted before, during, and after a long and complex international negotiation. Although the committee is not 100 percent satisfied with the results of that negotiation, we do believe that the experiment between the two branches of our Government worked... The Trade Agreements Act is proof... On balance, the TAA is in the best interest of the United States" (U.S. Congress 1979, S 20153). Over the 1980s, bipartisan support for free trade agreements continued, but with more controversy as U.S. trade imbalances increased. Then, in the 1990s, partisan and regional splits on free trade increased dramatically. Although fast track was a procedural issue, Senator Robert Byrd (D-WV) summed up its history, saying that its first two uses (the 1979 GATT Tokyo Round and the four-page U.S.-Israel Free Trade Agreement in 1985) had been "innocuous"--not so in the 1990s.

[S]tarting with its third use, fast track began to change and to develop an evil twin. I refer to the 1988 U.S.-Canada Free Trade Agreement which, despite its title, extended well beyond trade issues to address farming, banking, food inspection and other domestic matters. One has only to see the size of the agreement's implementing bill, covering over 100 pages now, to see how different this was from the first two agreements approved under the fast-track mechanism. By the time of the NAFTA [North Atlantic Free Trade Agreement] agreement in 1993 and the GATT Uruguay Round of 1994, the insidious nature of fast track was becoming apparent for all to see. NAFTA required substantial changes in U.S. law ... bundled aboard a hefty bill numbering over 1,000 pages and propelled down the fast track before many Members of Congress knew what was going on. I doubt that many of my colleagues realized the extent to which, first, NAFTA and then GATT would alter purely domestic law. Most of us thought of GATT as related to trade and foreign relations, but through the magic mechanism of the fast-track wand--presto--trade legislation became a vehicle for sweeping changes in domestic law. (U.S. Congress 1997, S 11650)

Nevertheless, President George W. Bush requested fast-track renewal, which he called "trade promotion authority," in his first State of the Union address in 2001, and in 2002, fast track was renewed despite growing partisan differences. Of course, the 2002 vote was complicated not only by high levels of partisanship, but also by new pressures to delegate power in the ubiquitous shadow of 9/11. In fact, the high-profile act establishing the Department of Homeland Security was passed immediately before the final conference bill on trade. However, at the end of the Bush years, congressional leaders decided to let languish three small-scale agreements pushed by the administration for Panama, Colombia, and South Korea. In a political sense, these were three small victories for interest groups who had fought the trade deals for various reasons, but in a larger sense, these agreements were late-game institutional proxy battles between Democrats in Congress and the unpopular president on a host of issues related to foreign policy and economic anxiety at home. As in the past, such moments are fraught with regional, partisan, and local meaning to the members (Conley 1999; Destler 2005; Mellow 2008; O'Halloran 1994; Uslaner 1998).

Over the course of the Bush presidency, Democrats changed sides on trade. Although more than 100 Democrats joined the NAFTA House majority, for example, the less significant Central American Free Trade Agreement (CAFTA) later got only 15 Democratic votes in the House 12 years later. There are many possible explanations for this switch, including the Bush administration's legislative pressures, the Republican leadership's floor tactics in the House, and open wonder on the floors of both chambers whether all the free trade agreements had helped or hurt the national economic outlook from corporate, labor, and consumer perspectives. It becomes more visible also that the Democrats simply wanted to deny power to President Bush (Toner 2007; Weisman 2005). Yet as the debate on CAFTA shows, members have a more nuanced--if inconsistent--view of their authority on trade. For example, Representative Ellen Tauscher (D-CA) acknowledged that she voted for the fast-track authority that allowed CAFTA to go forward, but then expressed frustration with the president's actual use of the authority. "I am proud to be a pro-trade Democrat in Congress and am proud of my record--having supported every free trade agreement since I took office in 1997. I voted in favor of granting the President Trade Promotion Authority in 2002 ... [however,] One would think that after the passage of that act--by a 3 vote margin--a clear signal was sent to the Administration that passing free trade agreements will not be easy. Everyone ought to be at the table. Instead of heeding past warnings, they have continued to make a habit of regularly excluding Democrats. CAFTA has been no exception" (U.S. Congress 2005b, H 6925-6926).

If the Democratic Congress suddenly starts to delegate future authority to President Obama to conclude the trade agreements that languished at the end of the previous administration, the cycle of ambivalence will continue. But it appears that trade is quite low on the White House agenda, failing to appear at all on the "issues" page that lists dozens of Obama's priorities. Fast track is just one small component of the globalization debates in the United States, but it became a potent symbol of presidential power to push free trade. Without a new push for fast track and new agreements from the White House, Congress can claim some credit for derailing this issue and shedding the executive presumption that it should dominate trade policy.

Post-9/11 Policy at Home and Abroad

While the Patriot Act and the Iraq War resolution emerged at a unique moment in American history, their background and aftermath follow the cycle of ambivalence. The attacks of September 11, 2001, while very different from these other cases, triggered a similar and fundamental question: whether and why Congress should defer to the executive branch on domestic intelligence and war policy. In these areas, members expressed hope that oversight would help mitigate the loss of power, but these attempts often ended with frustration. The last decade of intelligence reform shows this pattern. With the first Patriot Act, members debated how to balance national security, civil liberties, and conventional legislative processes in the weeks after 9/11. These questions translated into a separation of powers dilemma between President Bush's stated mission to root out domestic terrorism and Congress's right to legislate, oversee, and fund such actions. Although only one senator and 66 House members (mostly Democrats) opposed the original Patriot Act, many more from both parties went on record before and after it passed to voice their concerns about the purpose and use of these new intelligence powers, some of which had been denied by Congress before 9/11. Soon after, these skeptics decided to pursue oversight hearings and Patriot "reform" bills, using the very legislative prerogatives they had sacrificed earlier in the mad rush to complete the bill.

Yet even after some of these attempts to take back power gained momentum, the House and Senate reauthorized almost everything President Bush and his new attorney general, Alberto Gonzales, asked for--and with only a fraction of the sunsets included in 2001. These votes alone do not account for the complex institutional view of the Patriot Act among many members. For example, Senator Larry Craig (R-ID) cosponsored a bill with Senator Leahy called the Patriot Oversight Restoration Act of 2003, which sought to protect and extend the sunset provisions, and explained his own change of heart on the issue. "I am one of those who voted in favor of the USA Patriot Act to respond to the unprecedented, tragic attacks of September 11,2001. However, even at the time of the vote, I raised my reservations about the new authorities being granted under the act, and pledged that there would be aggressive oversight by the legislative branch to make sure [the Patriot Act's] implementation did not compromise civil liberties" (U.S. Congress 2003, S 12285). In 2006, however, Senator Craig voted to renew, hesitantly again. In the House, Representative Peter DeFazio (D-OR), who had opposed all incarnations of the Patriot Act, chided those who said they held their noses and hoped to gain power back later.

[A supporter] said, well, we can change this later. We heard that when we passed the first PATRIOT Act, which no Member of the House of Representatives had read, at 10 o'clock in the morning with one copy available on each side of the aisle. We said it sunsets; you can change it later. Now is later. It is time to change it. Guess what? They say well, no, we can't change it now; we might change it later after we make it permanent now. Before it was temporary; we are going to change it later. Now, it is permanent, maybe we will change it later. (U.S. Congress 2005c, H 11523)

In 2007-2008, with the Democrats in the majority, new intelligence policy battles between the White House and Congress surrounded updates to the 1978 Foreign Intelligence Surveillance Act. After several skirmishes similar to the Patriot Act, Bush prevailed again.

Then there is the war in Iraq. The Democratic leaders of the House and Senate, Richard Gephardt (D-MO) and Tom Daschle (D-SD), as well as supermajorities of both chambers, stood by President Bush during the one month of debate over the Iraq War resolution from mid-September to mid-October 2002. But within months of the war's start, Congress began to show signs of regret as its rationale, budgeting, and management came under fire on many sides. In May 2003, for example, a bipartisan coalition of senior members of both chambers asked that a hearing on federal contracts for Iraq rebuilding be expanded "to include nearly every aspect of the American occupation" (Becker 2003). For example, in a Senate Foreign Relations oversight hearing, Republican Senator Chuck Hagel (R-NB), who had voted for the authorization, acknowledged that Congress had a responsibility for the postinvasion problems when he said that "we may have underestimated or mischaracterized the challenges of establishing security and rebuilding Iraq" (Schmitt 2003).

In his opening statement at a House hearing on Iraq reconstruction in March 2004, ranking House member Henry Waxman (D-CA), who also had voted for the war, lambasted the Bush administration for its no-bid contract policy in Iraq as well as his own institution for its lack of attention to this matter. "I firmly believe that Congress has an important oversight role to play in ensuring the wise expenditure of taxpayers' dollars. Part of the problem that we're experiencing.., can be attributed to the lack of vigorous congressional oversight" (U.S. Congress 2004d, 10). And after the news story broke about the Abu Ghraib prisoner abuses, members voiced resentment and frustration that Congress was not overseeing the administration's efforts as well as it should. Representative Christopher Shays (R-CT) said, "I believe our failure to do proper oversight has hurt our country and the administration" (Hulse 2004). A lively exchange during an oversight hearing showed the divisions within Congress over which branch was to blame for the war's difficulties. Representative Duncan Hunter (R-CA) was more consistent than some of his colleagues in continuing to support the administration. His arguments contrasted with those of Baron Hill (D-IN) on remarks to witness Paul Wolfowitz.

REP. HUNTER: I would just remind my colleague that Mr. Wolfowitz did not pass the resolution to take military action against Iraq--this Congress, Democrat and Republican, including the vast majority of members on this committee, voted to take military action.

REP. HILL: Could I respond to that? Because I voted for that resolution, and I voted on it based upon a briefing I had at the Pentagon where drone airplanes were displayed as a security threat in the interests to the United States--proved that that was a fabricated story--not true.

REP. HUNTER: Well, I would just say to my colleague that we all took votes on that resolution. And this committee in fact had several briefings, not conducted by members of the administration, but conducted by intelligence agencies, offering both sides of a number of questions with respect to arms stockpiles in Iraq and arms programs in Iraq. (U.S. Congress 2004e, 79)

As the war went on, while members of Congress began to complain about the administration's use of war emergency supplemental bills outside the normal budget processes, almost all of the requested funds were approved by supermajorities. The only notable "victory" on the withdrawal timetable front for the Democrats was the Senate's November 2005 nonbinding resolution that requested the administration provide regular updates on government and military progress, a round-the-clock anti-surge protest on the House floor (the surge went forward anyway), and a 2007 supplemental war appropriation that contained a withdrawal timetable (which was vetoed). The Democrats won the House and Senate majority in 2006 in large part because of growing opposition to the president's war on terror and their promises of "A New Direction" on many policies, including Iraq and the Patriot Act. Once in power, though, the Democrats found that it was hard to compete with the president's portrayal of Congress as institutionally inferior in power, resources, information, and judgment of the "national interest." After hundreds of oversight hearings in the House and Senate in 2007-8, war powers were not recalibrated.

It was not until Barack Obama's election in 2008 that the Democrats gained the upper hand on the war, which the new president had long opposed. Scholarship on this war period differs: some say that Congress exercised its constitutional authority to alter the president's war plans (Wolfensberger 2005) and influence public opinion (Howell and Pevehouse 2007), while others argue that Congress largely abdicated its duty in the face of executive branch exaggeration and obfuscation about Iraq's security threat to the United States (Fisher 2004; Pfiffner 2009).

Troubled Assets Relief Program, 2008-2009

It is true that Congress is, and perhaps should be, more institutionally protective of its powers over distributive domestic policy than over war and military matters (Wildavsky 1975). However, congressional inconsistencies on key domestic issues surrounding fiscal and appropriations policy control show that the institutional ambivalence can pervade these issues as well. For example, while the budget and deficit policies of the 1980s and 1990s were centered on delegation of power (e.g., Gramm-Rudman-Hollings I and II, the Budget Enforcement Act, the balanced budget constitutional amendment movement, and the Line-Item Veto Act), Congress was active in year-to-year budget battles against the same presidents it supported with these new powers. More recently, Congress returned to the rhetoric of budgetary self-flagellation with bipartisan calls for "earmark reform" after the 2006 congressional elections, even though the amounts of money involved were miniscule compared to the budgetary strain of the executive branch's signature policies of tax cuts, Medicare reform, and the war in Iraq (Farrier 2004, 2009; Fisher 2000).

Yet a miniature cycle of ambivalence arose suddenly surrounding the fall of 2008 banking and credit industry bailout/rescue legislation, when members gave up institutional prerogatives quickly and later lamented the outcome and lack of oversight while delegating even more months later. For most of 2007-8, Republicans and Democrats in Congress pushed a wide variety of housing, banking, and mortgage issues onto the agenda, with little White House interest. In fact, President Bush did not argue at first that his branch had a unique structural place and superior national approach to resolving mortgage or credit pressures, nor did Bush appointee Federal Reserve Chairman Ben Bernanke. By contrast, in January 2008, Senator Charles E. Schumer (D-NY) held a hearing bluntly titled "What Should the Federal Government Do to Avoid a Recession?" (U.S. Congress 2008b, 1-2). Indeed, eight months after Schumer's statement, these very mortgage, finance, and economic pressures came to a head.

In October 2008, Treasury Secretary Henry Paulson's initial proposal to engage the federal government in unloading bad private assets gave vast discretion to himself and his then-unknown successor, with scant attention to oversight by Congress. Paulson's initial four-page proposal gave discretion to the treasury secretary through December 2009 and scant attention to oversight, or even the idea that the secretary's power was anything but unilateral. At the first public hearing three days after Congress received the proposal, Chairman Christopher Dodd (D-CT) took issue with several points: "This proposal is stunning and unprecedented in its scope and lack of detail. It would allow him to intervene in the economy by purchasing at least $700 billion of toxic assets. It would allow him to hold onto those assets for years, and to pay millions of dollars to handpicked firms to manage those assets. It would do nothing to help even a single family save a home ... And it would allow him to act with utter and absolute impunity--without review by any agency or court of law. After reading this proposal, I can only conclude that it is not just our economy that is at risk, Mr. Secretary, but our Constitution, as well.

Nevertheless, in our efforts to restore financial security to American families and stability to our markets, this Committee has a responsibility to examine this proposal carefully and in a timely manner" (U.S. Congress 2008c, 2). Secretary Paulson's opening statement, by contrast, was not ambivalent on the plan or the administration's culpability in the situation: "Over these past days, it has become clear that there is bipartisan consensus for an urgent legislative solution. We need to build upon this spirit to enact this bill quickly and cleanly.., in the best interest of all Americans" (U.S. Congress 2008c, 9).

The House voted down the administration's initial proposal, but just days later, Congress passed the Troubled Asset Relief Program (TARP), with a few hundred pages of added details and additional sweeteners for members. With the president at historically low levels of public opinion, putting the word "crisis" in the public sphere sparked a bipartisan round of congressional self-examination on whether the executive branch's policy perspective could be trusted. In the Senate, Jeff Sessions (R-AL), a steady supporter of the president's war and intelligence policies, said he would not support the bill. "I think it is indeed breathtaking that this Senate would authorize basically one person with very little real oversight, a Wall Street maven himself, and allocate $700 billion in America's wealth, which I would have to say would be the largest single authorization of expenditure in the history of the Republic" (U.S. Congress 2008d, S 10236). Senator Pete Domenici (R-NM) praised the addition of new oversight safeguards in the second version of the bailout bill and added, "Nobody is happy. Nonetheless, we are going to get it done.

This is one of the most difficult situations to explain to the American people that I have ever been involved in" (U.S. Congress 2008d, S 10238). Senator Bob Graham (D-FL), in voting for the bill, added that Congress was not done with this legislation. "There will be more corrective action following in the Congress. Please understand, after we take this decisive action, there will be more troubles lying ahead for America. But we have two choices as far as I am concerned: A bad choice we all recognize, and a catastrophic choice if we do nothing" (U.S. Congress 2008d, S 10242).

Then, in contrast to the original proposal to purchase mortgage-based assets from institutions, Paulson directed the Treasury Department to use the first half of the TARP money, $350 billion, to provide capital directly to troubled banks. Soon after, Congress gave him and Chairman Bernanke a scolding in oversight hearings on the abrupt change in plans. The House Committee on Financial Services' ranking Republican, Spencer Bachus (R-AL), who had voted for TARP, said, "while I applaud Secretary Paulson for recognizing that capital injections would best serve the taxpayers' interest, I have serious concerns about the improvised and ad hoc nature of Treasury's implementation of the Capital Purchase Program and other elements of the TARP. We all understand that when conditions on the ground change, policymakers must be agile enough to adjust to those changed circumstances. But changing too quickly, without adequately explaining why you've changed or what you're going to do next, risks sending mixed signals to a marketplace that is in dire need of certainty and a sense of direction" (U.S. Congress 2008e, 3). Weeks later, a nonpartisan Government Accountability Office report also offered a mixed assessment on the executive branch's operations (GAO 2008).

Yet in January 2009, just before the inauguration of President Barack Obama and in coordination with the two men, President Bush asked Congress for the second half of the $700 billion authorization. Under the original legislation, the funds would be released on demand by the administration unless Congress passed a disapproval bill. That effort failed in the Senate on January 15. Senator David Vitter (R-LA), who had not voted for the TARP legislation, led the disapproval effort: "There's been mistake after mistake, embarrassment after embarrassment, and a complete lack of accountability in the TARP program. The American people are not going to be fooled twice ... I urge all of my colleagues not to be fooled again, to say no to an open checkbook" (Goldman 2009). The funds were released soon after.


In recent decades, under different partisan regimes, Congress has delegated numerous powers and pared back its own prerogatives on policies spanning trade, base closings, war, and intelligence gathering. While not looking much like the institutional ambition assumed by James Madison, a vote for delegation may make perfect political sense in the short-term from member, party, and institutional perspectives as Congress faces tough decisions whose effects can aggravate risk in the election that always seems to be around the corner. In addition, the loss of legislative power in the twentieth century (and beyond) relative to the executive branch has numerous constitutional, electoral, and political origins (Cooper 2009; Dodd 1981; Sundquist 1981). Building on these strategic and structural views of power imbalance, I argue that Congress has suffered from an existential crisis revealed in cycles of ambivalence, in which members first delegate power, then appear to regret the decision and attempt to nibble back power in various ways, and then finally, months or years later, opt to delegate even more. These brief cases explore the institutional self-diagnoses behind the delegation decision and, equally important, its messy afterlife as Congress reevaluates its powers and place.

However, in contrast to Bush's legislative style of centralization and cutting deals with the majority party leaders, President Barack Obama's staff and cabinet connections to Congress at all levels--committee chairs, rank-and-file members, as well as the party leaders--have received attention as a strategy of deference (Bai 2009). At the same time, President Obama has continued key aspects of his predecessors' institutional ambition, such as the state secrets privilege, selective use of military commissions, and signing statements (Pfiffner 2009, vii-x). It is true that Congress's majority leaders have successfully thwarted fast track, and there are no base closure commissions on the horizon, but a vocal coalition has been pushing for a new BRAC-style commission to promote fiscal responsibility with up or down votes. While Nancy Pelosi, Harry Reid, and President Obama have resisted such calls to thwart their own institutional powers, majority leader Steny Hoyer is in favor, saying that Congress lacks the political will to budget responsibly (Alarkon 2009). The ambivalence dance continues.


Aberbach, Joel D. 1990. Keeping a Watchful Eye: The Politics of Congressional Oversight. Washington, DC: Brookings Institution.

Alarkon, Walter. 2009. "Hoyer 'Hopeful' on Entitlement Reform This Year." The Hill, May 6.

Arnold, R. Douglas. 1990. The Logic of Congressional Action. New Haven, CT: Yale University Press.

Bai, Matt. 2009. "Taking the Hill." New York Times Magazine, June 7.

Barone, Michael. 1999. "Dishonesty Matters." U.S. News & World Report, February 8.

Becker, Elizabeth. 2003 "Bipartisan Call to Expand Inquiry into Occupation." New York Times, May 24.

Binder, Sarah A. 2003. Stalemate: Causes and Consequences of Legislative Gridlock. Washington, DC: Brookings Institution.

Campbell, Colton C. 2002. Discharging Congress: Government by Commission. Westport, CT: Praeger.

Conley, Richard S. 1999. "Derailing Presidential Fast-Track Authority: The Impact of Constituency Pressures and Political Ideology on Trade Policy in Congress." Political Research Quarterly 52 (December): 785-99.

Cooper, Joseph. 2009. "From Congressional to Presidential Preeminence: Power and Politics in Late Nineteenth-Century America and Today." In Congress Reconsidered, 9th ed., eds. Lawrence C. Dodd and Bruce I. Oppenheimer. Washington, DC: CQ Press.

Cox, Gary W., and Mathew D. McCubbins. 2005. Setting the Agenda: Responsible Party Government in the U.S. House of Representatives. New York: Cambridge University Press.

Destler, I. M. 2005. American Trade Politics. 4th ed. Washington, DC: Institute for International Economics.

Dodd, Lawrence C. 1981. "Congress, the Constitution, and the Crisis of Legitimation." In Congress Reconsidered, 2nd ed., eds. Lawrence C. Dodd and Bruce I. Oppenheimer. Washington, DC: CQ Press.

Edwards, George C., III, and Desmond S. King, eds. 2007. The Polarized Presidency of George W. Bush. New York: Oxford University Press.

Epstein, David, and Sharyn O'Halloran. 1999. Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers. New York: Cambridge University Press.

Farrier, Jasmine. 2004. Passing the Buck: Congress, the Budget, and Deficits. Lexington: University Press of Kentucky.

--. 2007. "The Patriot Act's Institutional Story: More Evidence of Congressional Ambivalence." PS: Political Science and Politics 40 (January): 93-97.

--. 2009. "Budget Power, Constitutional Conflicts, and the National Interest." In The Constitutional Presidency, eds. Joseph M. Bessette and Jeffrey K. Tulis. Baltimore: Johns Hopkins University Press.

Fisher, Louis. 2000. Congressional Abdication on War and Spending. College Station: Texas A&M University Press.

--. 2003. "Deciding on War against Iraq: Institutional Failures." Political Science Quarterly 118 (Fall): 389-410.

--. 2004. Presidential War Power. 2nd ed. Lawrence: University Press of Kansas.

Goldman, David. 2009. "Senate Vote Fails, Obama Gets $350 billion." CNN, January 15. (accessed January 15, 2010).

Goren, Lilly J. 2003. The Politics of Military Base Closings: Not in My District. New York: Peter Lang.

Howell, William G., and Jon C. Pevehouse. 2007. While Dangers Gather: Congressional Checks on Presidential War Powers. Princeton, NJ: Princeton University Press.

Hulse, Carl. 2004. "Even Some in G.O.P. Call for More Oversight of Bush." New York Times, May 31.

Jones, Charles O. 2005. The Presidency in a Separated System. 2nd ed. Washington, DC: Brookings Institution Press.

Kiewiet, D. Roderick, and Mathew D. McCubbins. 1991. The Logic of Delegation: Congressional Parties and the Appropriations Process. Chicago: University of Chicago Press.

Kriner, Douglas. 2009. "Can Enhanced Oversight Repair 'The Broken Branch?'" Boston University Law Review 89: 765-93.

Mann, Thomas E., and Norman J. Ornstein. 2006. The Broken Branch: How Congress Is Failing America and How to Get It Back on Track. New York: Oxford University Press.

Mayer, Kenneth R. 1995. "Closing Military Bases (Finally): Solving Collective Dilemmas Through Delegation." Legislative Studies Quarterly 20 (August): 393-413.

Mayhew, David R. 1991. Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990. New Haven, CT: Yale University Press.

--. 2004. Congress: The Electoral Connection. 2nd ed. New Haven, CT: Yale University Press.

Mellow, Nicole. 2008. The State of Disunion: The Regional Sources of Modern American Partisanship. Baltimore: Johns Hopkins University Press.

O'Halloran, Sharyn. 1994. Politics, Process, and American Trade Policy. Ann Arbor: University of Michigan Press.

Oppenheimer, Bruce I. 1997. "Abdicating Congressional Power: The Paradox of Republican Control." In Congress Reconsidered, 6th ed., eds. Lawrence C. Dodd and Bruce I. Oppenheimer. Washington, DC: CQ Press.

Pfiffner, James P. 2009. Power lay: The Bush Presidency and the Constitution. Washington, DC: Brookings Institution Press.

Pious, Richard. 2009. "Military Tribunals, Prerogative Power, and the War on Terrorism." In The Constitutional Presidency, eds. Joseph M. Bessette and Jeffrey K. Tulis. Baltimore: Johns Hopkins University.

Rudalevige, Andrew. 2005. The New Imperial Presidency: Renewing Presidential Power after Watergate. Ann Arbor: University of Michigan Press.

Schmitt Eric. 2003. "Senators Sharply Criticize Iraq Rebuilding Efforts." New York Times, May 23.

Scully, Megan. 2005. "House Paves Way for Enactment of BRAC Proposals." CongressDaily, October 27.

Smith, Steven S. 2007. Party Influence in Congress. New York: Cambridge University Press.

Sorrells, Niels C. 2004. "Opponents Vow Last-Stand Battle over Next Base Closure Round." CQ Weekly, March 13.

Sundquist, James L. 1981. The Decline and Resurgence of Congress. Washington, DC: Brookings Institution.

Thurber, James A., ed. 2006. Rivals for Power: Congressional-Presidential Relations. 3rd ed. Lanham, MD: Rowman & Littlefield.

Toner, Robin. 2007. "For Democrats, New Challenge in Age-Old Rift." New York Times, May 8.

Tulis, Jeffrey K. 1987. The Rhetorical Presidency. Princeton, NJ: Princeton University Press.

U.S. Congress. 1979. Trade Agreements Act. HR 4537, 96th Con&, 1st sess. Congressional Record 125 (July 23).

--. 1989. Disapproving the Recommendations of the Commission on Base Realignment and Closure. H.J. Res. 163, 101st Cong., 1st sess. Congressional Record 135 (April 12).

--. 1994. National Defense Authorization Act for Fiscal Year 1995. HR 4301, 103rd Cong., 2nd sess. Congressional Record 140 (May 24).

--. 1997. Reciprocal Trade Act. Motion to proceed on S. Res. 1269, 105th Cong., 1st sess. Congressional Record 143 (November 4).

--. 2001. USA PATRIOT Act. S 1510, 107th Cong., 1st sess. Congressional Record 147 (October 11).

2002. Trade Act. HR 3009, 107th Cong., 2nd sess. Congressional Record 148 (July 26).

--. 2003. Patriot Oversight Restoration Act. S 1695, 108th Cong., 1st sess. Congressional Record 150 (October 1).

--2004a. Plans for Assisting Iraq in the Coming Months. Hearings before the Senate Committee on Foreign Relations, 108th Cong., 2nd sess., September 15.

--2004b. Amendment 3158, Defense Authorization Act for Fiscal Year 2005. S 2400, 108th Cong., 2nd sess., Congressional Record 150 (May 18).

2004c. Roll Call 200 on Amendment 8, Defense Authorization Act of 2004. HR 4200, 108th Cong., 2nd sess., Congressional Record 150 (May 20).

2004d. The Complex Task of Coordinating Contracts Amid Chaos: The Challenges of Rebuilding a Broken Iraq. Hearing before the House Government Reform Committee, 108th Cong., 2nd sess., March 11.

--. 2004e. Progress in Iraq. Hearing before the House Armed Services Committee, 108th Cong., 2nd sess., July 22.

--. 2005a. Amendment 1389, National Defense Authorization Act for Fiscal Year 2006. S 1042, 109th Cong., 1st sess. Congressional Record 151 (July 21).

--. 2005b. To Implement the Dominican Republic-Central America-United States Free Trade Agreement. HR 3045, 109th Cong., 1st sess. Congressional Record 151 (July 27).

--. 2005c. USA PATRIOT and Terrorism Prevention Reauthorization Act. HR 3199, 109th Cong., 1st sess. Congressional Record 151 (December 14).

--. 2008a. Emergency Economic Stabilization Act of 2008. HR 1424, 110th Cong., 2nd sess. Congressional Record 154 (October 3).

---. 2008b. What Should the Federal Government Do to Avoid a Recession? Hearing before the Joint Economic Committee, 110th Cong., 2nd sess., January 16.

--. 2008c. Turmoil in U.S. Credit Markets: Recent Actions regarding Government Sponsored Entities, Investment Banks and Other Financial Institutions. Hearing before Senate Committee on Banking, Housing, and Urban Affairs, 110th Cong., 2nd sess., September 23.

--. 2008d. Emergency Economic Stabilization Act. HR 1424, 110th Cong., 2nd sess. Congressional Record 154 (October 1).

--. 2008e. Troubled Asset Relief Program. Hearing before House Committee on Financial Services, 110th Cong., 2nd sess., November 18.

U.S. Department of Defense. 1988. "Report of the Defense Secretary's Commission: Base Realignments and Closures." (accessed January 15, 2010).

U.S. Government Accountability Office (GAO). 2008. Troubled Asset Relief Program: Additional Actions Needed to Better Ensure Integrity, Accountability, and Transparency. Washington, DC: Government Printing Office.

Uslaner, Eric M. 1998. "Let the Chits Fall Where They May? Executive and Constituency Influences on Congressional Voting on NAFTA." Legislative Studies Quarterly 23 (August): 347-72.

Weaver, R. Kent. 1986. "The Politics of Blame Avoidance." Journal of Public Policy 6 (October-December): 371-98.

Weisman, Jonathan. 2005. "CAFTA Reflects Democrats' Shift from Trade Bills." Washington Post, July 6.

Wildavsky, Aaron. 1975. "The Two Presidencies." In Perspectives on the Presidency, ed. Aaron Wildavsky. Boston: Little, Brown.

Wolfensberger, Donald R. 2005. "Congress and Policymaking in an Age of Terrorism." In Congress Reconsidered, 8th ed., eds. Lawrence C. Dodd and Bruce I. Oppenheimer. Washington, DC: CQ Press.

Yoo, John. 2005. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. Chicago: University of Chicago Press.


University of Louisville

Jasmine Farrier is an associate professor of political science at the University of Louisville. She is the author of Passing the Buck: Congress, the Budget, and Deficits.

AUTHOR'S NOTE: This article is a summary Of Congressional Ambivalence: The Political Burdens of Constitutional Authority. I thank Lawrence C. Dodd, Daniel J. Palazzolo, and James P. Pfiffner for their insightful comments and suggestions.
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Author:Farrier, Jasmine
Publication:Presidential Studies Quarterly
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Geographic Code:1USA
Date:May 21, 2010
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