Congress has returned from its August recess, but not for long.
The House will have just four voting days before members leave Washington to campaign for the November midterm elections. The Senate will remain somewhat longer, but little legislation of broad national consequence is expected to clear Congress before Election Day.
None of this is particularly unusual. That may be the problem.
We have grown accustomed to Congress preparing for the next election while consequential questions remain unresolved year after year: immigration, the national debt, healthcare costs, war powers, energy policy, and the long-term finances of Social Security and Medicare.
Soon, candidates from both parties will return home and tell us what is wrong with Washington and what they will accomplish if voters give them another term.
There is an obvious question we don’t ask often enough: Why haven’t you done it already?
Control of Congress has changed repeatedly. Presidents have changed. Majorities have come and gone. The unresolved problems remain.
Perhaps the problem is no longer simply who controls Congress. Perhaps the problem is Congress itself.
The Founders viewed the balance of power differently. James Madison wrote in Federalist No. 51 that in republican government, “the legislative authority necessarily predominates.”
The Constitution reflects that expectation. Congress could tax and spend, regulate commerce, control appropriations, declare war, raise armies, create lower federal courts, and impeach federal officials. The Senate shared responsibility for treaties and major presidential appointments.
Two centuries later, Americans increasingly look to presidents to solve problems Congress cannot, or will not, resolve.
As government became more complicated, Congress delegated considerable authority to the executive branch. That is neither new nor necessarily improper. Congress cannot anticipate every contingency.
The more important question is whether Congress is delegating how a policy will be carried out — or avoiding responsibility for deciding what the policy should be.
Consider immigration.
For decades, Congress has failed to resolve basic questions about American immigration policy: What should happen to people who entered illegally but have lived peacefully here for decades? Who should be prioritized for removal? What should the asylum system look like?
Yet presidents have increasingly supplied their own answers. The Biden administration sharply limited interior enforcement priorities, concentrating ICE resources on national-security threats, serious criminals, and recent border crossers while expanding humanitarian parole and other pathways that allowed hundreds of thousands of migrants to enter or remain in the country. The Trump administration has taken almost the opposite approach: Simply being in the country illegally can put someone on the table for arrest and removal.
These are profoundly different immigration policies, yet both administrations have operated largely under immigration laws written by the same Congress.
Immigration is hardly unique. Presidents of both parties have conducted military operations under broad claims of authority, prompting Congress to enact the War Powers Resolution in 1973 to reassert its role. Congress has similarly granted presidents considerable discretion over tariffs and extraordinary authority during national emergencies.
The growth of presidential power is not simply the story of presidents taking power. It is also the story of Congress choosing not to exercise its own.
There is an uncomfortable political reason this continues.
Legislating is dangerous. A representative who casts a difficult vote creates a record that can become a campaign advertisement. Compromise can anger activists. Supporting half a loaf can invite a primary challenge from someone promising the whole thing.
Avoiding the decision can be much safer. Better yet, an unresolved problem remains politically useful. Immigration can motivate voters. Healthcare can raise money. The national debt can become a campaign issue. Presidential overreach generates television appearances.
A problem solved can no longer be campaigned on in quite the same way.
Politically, owning an issue can be more valuable than solving it.
Republicans can condemn executive overreach under Democratic presidents and discover the virtues of presidential authority when a Republican occupies the White House. Democrats can perform the same maneuver in reverse.
The names change. The institution keeps surrendering ground.
The pattern has become familiar. Congress leaves the underlying policy unresolved or writes the law broadly enough to leave enormous discretion to the executive. The president acts. Someone sues. A federal judge intervenes. Members of Congress then praise or condemn what the president or judge has done.
Supreme Court Justice Robert Jackson identified the danger in the 1952 Youngstown case, when the court struck down President Harry Truman’s attempt to seize the nation’s steel mills during the Korean War. Jackson observed that congressional “inertia, indifference, or quiescence” could enable, even invite, independent presidential action.
He also offered a warning that could have been written for Congress today: “Only Congress itself can prevent power from slipping through its fingers.”
Which brings us back to this fall. Members of Congress will soon return home to ask Americans for another term.
But perhaps voters should ask another question. Not simply: What do you believe? But: What are you willing to make Congress decide?
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And when those decisions require politically dangerous votes, will you cast them before the election rather than afterward?
But representative government cannot function indefinitely if representatives avoid representing us on precisely the questions that might cost them reelection.
Joe Palaggi is a writer and historian whose work explores the historical forces that shape American civic culture, religion, and public life. His essays have appeared in the Washington Examiner, the Hill, RealClearPolicy, and the Fulcrum. More of his work can be found at joepalaggi.com.