The Not-So-Incredible Shirking Congress

April 18, 2019

Presidential power is out of control, and our legislature must reassert itself

Imagine it’s March 2022. The Republican-controlled Senate has just rejected Speaker Alexandria Ocasio-Cortez’s Green New Deal, ending any chance of legislative action on climate change before the midterm elections.

Heavy rains have caused flooding along the Ohio and Wabash Rivers in Indiana. The governor has called a state of emergency. And with her legislative agenda in tatters and the economy flat, President Kamala Harris sees her chance: She declares a national emergency over climate change, invoking broad legislative powers pursuant to the National Emergencies Act.

First, President Harris ends all oil, natural-gas, and coal leases on federal lands.

Second, she redirects billions of dollars in military spending to build a national high-speed-rail network.

Third, she extends hundreds of billions in loan guarantees to wind and solar projects.

And finally, she freezes the finances of all oil and gas corporations and their officers. These “threats to the climate safety of our nation” must be held accountable for all the damage caused to the environment, she explains.

Seem far-fetched? Maybe.

But what if someone predicted in 2008 that a President Obama, after saying more than 20 times that he did not have the constitutional authority to do so, would go ahead and unilaterally rewrite immigration law by executive fiat in June 2012, at the height of his reelection campaign?

Would you have believed him?

I bet not.

The Overton window on what our nation lets the executive branch get away with is expanding, fast. And we need to take some real steps to reverse course now.

But how did we get here in the first place? How did we stray so far from the vision of the Founding Fathers, and from the constitutional and legal framework by which they intended to protect the American people?

If we are to understand our past mistakes — and make any progress in reversing course and restoring the vision of the Founding Fathers — we must first revisit why they designed the Constitution the way they did.

It’s significant that the very first clause of the first section of the first article of the Constitution consists of the words “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

The Framers wasted no time in getting to the heart of the matter: They placed the legislative powers within the federal government — that is, the power to make law within the federal system — in the branch of government that would be most accountable to the people through regular, routine elections.

Moreover, they deliberately set up our system of government in a way in which there would be a “separation of powers.” So while the legislative branch would write the law, another would enforce the law, and still another would interpret the law. And this system of government relied necessarily on the fact that each branch of government would operate within its domain and would jealously guard the powers reserved to it, neither exceeding the powers granted it nor accepting diminution of those powers.

The overlapping power and required collaboration between the branches is, of course, a bedrock feature of the Constitution’s governing structure. The Framers knew that this constitutional balance would be necessary to protect us from the tyranny of a single branch or a single person.

And they intended Congress to be the first among the branches. They had already experienced tyrannical rule under the monarchs of England. As they listed in the “grievances” in the Declaration of Independence, King George III had dissolved colonial legislatures, imposed taxes without representation, unliterally declared unjust wars, and cut off trade with foreign countries, among other things.

So they very specifically did not place these powers in the executive branch, because they knew that they would be most prone to abuse there, concentrated in the hands of a single official, as they had experienced all too well.

Instead, they assigned these powers — the powers to legislate, tax, spend, declare war, oversee trade, and practice oversight of the weaker executive and judicial branches — to Congress, precisely because Congress was subject to the tightest public accountability to keep those powers in check.

The genius of the constitutional architecture was that the American people, through elected representatives, would have a say in these matters. And if these officials failed to represent them or to carry out their duties, the American people could fire them. Every few years, through regular, routine elections, the people could hold them accountable.

While the checks and balances are undoubtedly one of the most important features of our Constitution, the public-accountability factor is indispensable to its purpose. The point of constitutional lawmaking — the purpose of the checks and balances — is not so much to function as if it were a Rube Goldberg machine or a delicately weighted balance of beads on a scale. The point is rather that it is a minefield; it is supposed to be a harrowing experience for elected officials, so that it is good for the American people.

This was the framework that the authors of the Constitution left us with, for good reason. And for the first 150 years or so of our Republic, it worked. Congress made the laws, and the executive branch enforced them.

Where did we go wrong?

In the early 20th century, as the “progressive” theory of government gained traction, the strict separation of powers in the Constitution began to be undermined. During his first inaugural address, President Franklin Roosevelt declared that the Great Depression should be treated “as we would treat the emergency of war” and that “it may be that an unprecedented demand and need for undelayed action may call for temporary departure from the normal balance of public procedure.” Roosevelt created the first “federal agencies,” which began to write new laws.

But it turned out that President Roosevelt’s departure from the Constitution was anything but temporary, and the United States has been on a slippery slope ever since.

Under President Truman, the federal government adopted a more systematic and codified framework, which set the ground rules for America’s burgeoning administrative state through the Administrative Procedure Act (APA). Under the APA, Congress could now grant large swathes of legislative power to the executive branch, but federal agencies had to jump through a series of procedural hoops to exercise that power; and federal judges enjoyed their new role as referees over whether those new procedures had been properly followed.

Somewhat queasy about passing off so much power to the president, Congress did come up with a tool that allowed it to feel in charge still: the legislative veto. Under this scheme, whenever Congress granted a federal agency a new power, it still retained the ability to veto a specific use of that power by a majority vote in either chamber.

With the APA procedural hoops in place and the legislative veto as insurance, Congress merrily enacted hundreds of new statutes giving its legislative powers to the executive branch.

But in 1983, in INS v. Chadha, the Supreme Court held that such legislative vetoes were unconstitutional, since they failed to satisfy Article I, Section 7, Clause 1 of the Constitution (a.k.a. the presentment clause), which requires that every law passed by Congress “be presented” to the president for signature. The Court reasoned that since the vetoes essentially amounted to new legislation, they must be signed by the president to have effect.

Hundreds of such limited grants of authority, spread throughout the federal code, suddenly became carte blanche grants of power. At the time, the Court believed that Congress would stop giving so much legislative power to the executive branch; or maybe even go back and reclaim some of the powers it had already surrendered. But no such awakening ever occurred.

A year later, in Chevron U.S.A. v. NRDC, the Court held that, when judging whether or not a federal agency had complied with the APA, a court must defer to the federal agency’s interpretation of statutory text. This decision significantly decreased the ability of courts to check executive overreach.

So today, the vast majority of federal “laws” are not passed by the House and Senate and signed by the president. Instead, they take the form of government regulations or orders written by people who do not stand for election and who use processes contrary to those contemplated in the Constitution.

And all of this has been under the guise that constitutional process doesn’t “matter” anymore. Political elites feed us a faux-sophisticated analysis that the Schoolhouse Rock version of how a bill becomes a law is a nice theory but is now naïve and passé in our vast, diverse continental nation of nearly 330 million people. They claim that, given the responsibilities of the United States as a global economic and military power, and Congress’s inability to get things done, we have no choice but to accept and even encourage an imperial presidency and a judicial super-legislature. They claim that violating the procedures given to us by the Constitution is a victimless act.

This couldn’t be further from the truth. But the American people are suffering precisely because of it. The upending of our constitutional order has led to bad policy as well as a deep public distrust in our governing institutions.

By pulling power into Washington and into the less accountable branches of government, we have tilted the policy playing field, rigging the lawmaking process to benefit the wealthy and well-connected at everyone else’s expense. Through centralization, we have empowered and enriched the political and corporate classes and crippled the working and middle classes. Indeed, centralization has proved to be surrender to exactly the kind of monarchial and abusive sort of government that our Founding Fathers were trying to protect us from.

In circumventing the constitutional and legal framework left to us by the Framers, we have thrown off the very means by which they intended to preserve our freedom and prosperity.

There is reason for hope, however. What a weak Congress has broken, a strong Congress can fix. The constitutional powers necessary to put a representative, accountable federal government back to work for the American people are still right there in Article I, ready to be reasserted. And to this end, there are several reforms that we can make.

Take the National Emergencies Act (NEA), the legislation President Trump recently used to redirect military construction funds away from congressionally approved projects and toward congressionally unapproved sections of the southern border wall. When Congress adopted the NEA in 1976, it included provisions that would allow a single chamber of Congress to veto a president’s emergency actions. But, as discussed, that check was removed by the Court’s 1983 Chadha decision.

That’s why I recently introduced legislation that would reclaim these powers for Congress. The Article One Act would automatically end all future emergency declarations made pursuant to the NEA after 30 days unless Congress voted affirmatively to extend the emergency. Such a measure would go a long way toward restoring the balance of powers in our republic.

More broadly, I believe that we need to advance an agenda of structural reforms to strengthen Congress by restoring its constitutional legislative powers in several key areas.

First, we need to reclaim congressional authority over regulations and regulators by passing the Regulations from the Executive in Need of Scrutiny Act (REINS Act). This bill would undo much of the damage caused by Chadha by requiring affirmative congressional approval for any new regulation that has a major impact ($100 million) on the economy.

Second, we need to restore the Article III power that courts once exercised over the regulatory process by passing the Separation of Powers Restoration Act. This bill would amend the Administrative Procedure Act so that judges would no longer have to defer to federal-agency interpretations of statutory text. Instead, courts would look at the statute fresh and apply their own interpretation of what the statutory text allows.

Finally, we need to end the legislative “cliffs” and the government shutdowns that cause Congress to vote, without debate or amendment, on thousand-page bills that no one has read. We can begin to do this by passing the End Government Shutdowns Act. This bill would create an automatic continuing resolution for any regular appropriations bill not completed before existing spending authority runs out. Spending would then continue at existing levels for the first 120 days before falling by 1 percent across the board for every 90 days after that. All discretionary spending would be treated equally; no partisan carve-outs, and no exceptions.

The Founding Fathers understood that to prevent the abuse of power, and its concentration in the hands of few, they would have to place real constraints on it. They knew how to properly harness and rein in the power of the executive branch — and all the branches, for that matter — so that it would be uncomfortable, rather than comfortable, for those who wield it.

The genius of the Framers was that they left us with structures and means to ensure just that and hold our elected officials’ feet to the fire — so that our government is of, by, and for the American people. And it will be by upholding the Constitution and its procedures that we will be able to restore and maintain that government.

Op-ed was originally published by the National Review