How the House and Senate let themselves get hijacked.

Author:DeMuth, Christopher
Position:Law & Justice - Essay

"Restoring Congress to a central position in government clearly will be a heavy lift...."

OUR CONSTITUTION often is treated as a reliquary, worthy of reverence but no longer of much practical use. Yet, the Constitution reflects, in many deep and subtle ways, the character of the people who established it and have lived and prospered under it for some 225 years. This particularly is true of its structural features of federalism and separated powers, which vindicate Americans' democratic nature, our distrust of power, and our taste for open competition.

The struggle for power and advantage is a constant of human society. In democracies, that struggle is organized and advertised through political campaigns and elections. It equally is present within government, but there it is not always observable. In the parliamentary systems of Europe, open competition ends with the election returns and formation of a government. At this point, legislative and executive powers are fused. Struggles over policy continue, but they work themselves out in private within ministry offices and leadership councils. A well-led government can present, at least for a time, a unified, dignified, self-confident public face.

That is seldom possible in the American system, where competition in government is exposed for all to see. The two political branches possess separate electoral bases and are assigned powers that partly are shared and partly independent. They are co-dependent and must work out their differences in public. Presidents, executive officials, and members of Congress may bring astute tactics and compelling rhetoric to the task but, in the heat of contention, they also are prone to diatribes, bluffs, missteps, backtracking, and humiliations. Dignified the process is not.

Parliamentary systems have their strengths, but open competition is the American way. Checks and balances are important means of policing the corruption and abuse that arise whenever power is monopolized. They also are means for pursuing two things that Americans especially care about: limited government and humble leaders. The sheer cumbersomeness of our constitutional structure usually requires extended negotiation leading to a substantial consensus before the government can act, and the spectacle of continuous public extemporizing makes it difficult for our leaders to pretend that they command events.

Yet, our system depends on a reasonable balance of power among the three constitutional branches, and we are losing that. In recent decades, power has shifted dramatically away from Congress--primarily to the executive but also to the judiciary.

Part of the shift has resulted from presidents, executive agencies, and courts seizing congressional prerogatives. This part of the story has been much in the news. Pres. Barack Obama has rewritten important provisions of the Patient Protection and Affordable Care Act and immigration law, while circumventing the Constitution's requirement of Senate approval for senior executive appointments. The Environmental Protection Agency has contorted the Clean Air Act beyond recognition to regulate carbon dioxide and other greenhouse gases--and has done so after Congress declined to embark on such regulation. The Supreme Court has acquiesced in most of these executive usurpations, while taking for itself the authority to decide live political controversies. It played both roles in June 2015, first approving the Obama Administration's unilateral extension of tax credits to persons who purchase health insurance on the Federal ObamaCare exchange, then declaring same-sex marriage a constitutional right.

The most important part of the story, however, has an opposite plot: Congress itself, despite its complaints about executive and judicial poaching, has been giving up its constitutional powers voluntarily and proactively for decades. Since the early 1970s, Congress has delegated broad lawmaking authority to a proliferating array of regulatory agencies, from the EPA and Occupational Safety and Health Administration in the early years to numerous executive councils, boards, and bureaus under ObamaCare and Dodd-Frank in 2010. In the new dispensation, members of Congress vote bravely for clean air, affordable health care, and sound finance, while leaving the real policy decisions to executive agencies.

In recent years, Congress even has handed off its constitutional crown jewels--its exclusive powers, assigned in Article I, Sections 8 and 9, to determine Federal taxing and spending. Several executive agencies now set and collect their own taxes or generate revenues in other ways, and spend the proceeds on themselves or on grant programs of their own devising, without congressional involvement. Most members of the current Congress cannot even remember the days when that body passed annual appropriations, agency by agency, often with riders directing how the agencies may and may not spend the funds. More recently, following its hapless efforts to use the debt ceiling to force policy...

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