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Constitutional Expert Says Congress Has Lost Power Over The Presidency

STEVE INSKEEP, HOST:

What does today's expected Senate acquittal of President Trump mean for the American system of checks and balances? Kim Wehle is not so optimistic. She is a law professor at American University and wrote about this subject for The Atlantic. She's on the line. Good morning.

KIMBERLY WEHLE: Good morning, Steve.

INSKEEP: Are you suggesting that Congress has thrown away its influence over the president?

WEHLE: Yeah. President's lawyer, Pat Philbin, said that there are numerous political tools it can use in battles going forward, and none of them, I think, are really legitimate anymore - appropriations, legislation, nomination process. We can go through each of them. And in addition - impeachment. But I think this vote demonstrates impeachment is probably not going to function as, really, a limitation on this president's activity, in his own mind anyway, going forward.

INSKEEP: Oh, because, of course, the president has such strong support within his own party that impeachment would seem to be highly unlikely at this time. Now, I want to mention that some of the Republicans who are voting to acquit the president nevertheless argue that they still have some power over the president because of some of the same tools you just alluded to.

So I want to mention, we did speak with Republican Senator Lamar Alexander on Friday. He's a senator who says the president did something inappropriate but not worthy of being removed from office, and he says Congress still does have leverage here. Let's listen.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

LAMAR ALEXANDER: I think the fact that he has appropriations bills, which we have to vote on war, powers acts, which we have to vote on, his decision to take money and use it to build a wall in a way that's not authorized, which we have to vote on - all those are checks and balances, and so is the Supreme Court. So I think the process is operating very well.

INSKEEP: What's he missing?

WEHLE: Well, I mean, the whole - one of the allegations relating to impeachment is that he violated the Impoundment Control Act. The GAO issued a long report that said, essentially, the president didn't have the authority to uniformly, unilaterally withhold the aid from Ukraine without letting Congress know. And right now lots of bills that come from the House of Representatives on lots of issues don't get to the Senate floor because Majority Leader Mitch McConnell won't even raise them.

So we don't have a Congress that is actually functioning to produce legislation. And even in legislation that's on the books, this president has decided, I don't need to adhere to it; I don't need to listen to that statute, and I don't need to pay attention to Congress' appropriations power. None of these checks mean anything if there are not consequences for violating the checks. That's really the issue. It's not so much what the law says, but when the law is violated or expanded, what - is there pushback? And right now I don't see any pushback from this Congress.

INSKEEP: Republicans were particularly scornful of the article of impeachment that accused the president of obstructing the will of Congress. They said that Democrats in the House had not tried hard enough to investigate it, not tried hard enough to get administration witnesses before them and administration documents before them, that they just kind of punted and issued that article of impeachment. Does this, in fact, seem like a new level of the president ignoring Congress' power to investigate and oversee?

WEHLE: Yeah, there's no question. I mean, lawyers don't and presidents don't have the opportunity to flout established law and force Congress, in this instance, to go back to court to get judges to say what the law already is. And there is no law supporting blanket, unlimited immunity from having to testify before Congress, even for presidents, let alone for people that work for the presidency. In addition, this president didn't respond to any document requests.

So the people who lose in this process are the American public, and Congress is not protecting its own prerogative of oversight. And it's that piece that's really damaging because we're watching the presidency, the office become one that has virtually unlimited power. But it does make November 2020 really important for purposes of protecting the Constitution.

INSKEEP: That's former federal prosecutor Kim Wehle, now a law professor at American University. Thanks so much.

WEHLE: Thank you, Steve. Transcript provided by NPR, Copyright NPR.