Author’s Note: This article was originally drafted in mid-June, before the debt ceiling debacle even began to unfold. I have revised parts of the article to reflect events which have occurred in the interim, but I want to point out that the deal Congress just passed with respect to the debt ceiling is yet another chilling example of Congress diluting, diffusing, or outright surrendering the authority granted to it under our Constitution. As you may know, the deal involved the creation of what some are calling a Super Congress. As the following video points out, this new creation, and its endowment with powers formerly the sole province of Congress as a whole, is arguably unconstitutional. We recognize that we have already embedded the video, below, in yesterday’s article. We think the issue is so important, we’re including it again.
According to Senate Minority Leader McConnell, Congress “decided to concentrate power in this joint-committee because we have an extraordinary problem. If the normal way we do business was adequate, we wouldn’t have a $14 trillion debt or $50 trillion in unfunded liabilities. We needed to do something different.” Although GiN will cover this issue in depth in another article, I would like to suggest here that, contrary to Senator McConnell’s assertion, there was nothing wrong with the system our founders gave us. Any inadequacies inherent in the “normal way” Congress does business at present result from perversions of that original system and from the caliber of the present members of that body.
Has anybody else noticed that one of the transformations the progressives appear intent on imposing upon the rest of us has taken the form of a concerted effort to render Congress irrelevant? Of course, Congress is assisting in its own demise. The 111th Congress earned the lowest overall approval ratings in the history of the institution. The present body is not scoring much higher1Editor’s Note: The link included to Congressional approval polls is the full history of the Real Clear Politics tracking, which dates back ...continue
But the principles of separation of powers and checks and balances are fundamental to our Constitutional Republic. Our Founders sought to protect us from tyranny by doling out unique and countervailing authority to each of the three branches of government, making the branches roughly equal in stature but balanced against one another overall. In this scheme, it is rare, if not impossible, for one branch to have exclusive control over a single subject matter area within the purview of the federal government. For example, the president is commander-in-chief of the military, but Congress has the power to declare war. Although, in his role as commander-in-chief, the president has the authority to direct military operations, Congress has the power of the purse to determine whether and to what extent those operations are funded. Of course, the Judicial branch has the authority to review the actions of the other two branches to determine if they are consistent with the Constitution and strike them down if they are not. All in all, the Founders succeeded in nicely playing each branch off against the others, creating a balance that has been described as “suggestive of the mechanism of the heavens,” politics turned into mechanics where the theory of gravitation reigns supreme.
This balance is in the process of being upset. In particular, Legislative checks on the authority of the Executive branch are being swept away. How so? Let’s count the ways:
- A prime example of the Executive doing an “end-run” around Congress is the United States’ current role in Libya. Congress passed the War Powers Act in 1973 after Presidents Lyndon Johnson and Richard Nixon went to war in Vietnam without a congressional declaration. The law gave the president 90 days after introducing troops into hostilities before congressional approval was needed. President Obama deployed U.S. armed forces in Libya over 90 days ago now, not only without Congressional approval, but with no intention of seeking such approval. He claims what the U.S. is doing in Libya does not constitute “hostilities” within the meaning of the War Powers Act. Even a Congressman from his own party has observed, “if any other country were flying over the United States for the purpose of bombing our territory, we would regard that as being introduced into hostilities.”
- Then there’s health care. Over the last year, the Health and Human Services Department (HHS) has granted at least 1,372 temporary waivers to ObamaCare mandates, most notably for price controls on private insurance companies. Many have gone to Democratic allies like unions, but many more went to ordinary businesses and even states. HHS has already given a pass to Nevada, New Hampshire and Maine, and another dozen or so have applied or are expected to ask for exemptions. . . . But this waiver process isn’t in the law’s statutory language. HHS has simply created it via regulation. By similar means, it has even found a way to override ObamaCare’s cuts to the Medicare Advantage program that were counted as “savings” to make the health bill look less spendthrift.”
- Of course, no list such as this would be complete without mentioning the Environmental Protection Agency (EPA). There has been a concerted push by the EPA to extend its own power to regulate greenhouse gases, generally, and carbon dioxide, in particular, by adopting an expanded reading of the authority given to it by Congress under the Clean Air Act, in spite of the fact that Congress has consistently rejected statutory language that would give the EPA such power. Unfortunately, an activist Supreme Court has aided and abetted the EPA in its efforts. A recent Wall Street Journal article summed up the EPA’s attitude toward Congress by saying, “The EPA now claims its carbon regulation is compelled by the Supreme Court, as if Congress can’t change the law, as well as by “science,” as if Congress is a potted plant.”
- Heaven knows that No Child Left Behind is a law in need of change, if not outright repeal. But, it was duly adopted by Congress and it is Congress that must, ultimately, come to grips with its own folly. Not so, according to Education Secretary Arne Duncan. He is threatening to use his position to alter key elements of the statute if Congress doesn’t renew and upgrade the education law before the next school year begins. Taking a page from HHS’s playbook, Secretary Duncan plans to waive specific requirements of the law in exchange for states agreeing to adopt other efforts he champions. Whether you agree or disagree with the ideas Secretary Duncan would substitute for those Congress chose to require, Congress was elected to make such decisions. Secretary Duncan was, most definitely, not.
- The National Labor Relations Board (NLRB) is doing its best to serve the interests of unions even though “card check” does not have sufficient support to make it through Congress. In doing so, the NLRB has, effectively, neutered Congress’s long-standing “right-to-work” legislation. This involves a decision by Boeing to build a new plant, not in Washington state, but in South Carolina. Boeing’s facilities in Washington are unionized. South Carolina is a “right-to-work” state. After Boeing invested $2 billion in the new South Carolina facility, the NLRB filed a complaint demanding that an administrative law judge halt the South Carolina plant (set to open in July), and force Boeing to move production to Washington. According to a recent editorial, “The complaint’s real target is the federal right-to-work guarantee. The Boeing complaint guts that guarantee by effectively requiring companies to continue manufacturing in union states—or be found guilty of a rights violation. This is a union dream come true, on par with ‘card check.’”
- Then, there’s Elizabeth Warren. What? Who’s she, you ask? She was appointed a special adviser to President Obama and charged with the creation of the Consumer Financial Protection Bureau (CFPB) created by the Dodd-Frank financial regulation act. The President wanted to make her the head of the CFPB, but knew she could not gain Senate approval should he nominate her for that position. So, he did an end-run around the requirement for Senate approval and appointed her as his consumer financial protection czar. Notably, the CFPB is organized under the auspices of the Federal Reserve but has little or no oversight from the Fed or any other agency of government. Initially, Ms. Warren was effectively the head of the CFPB and was essentially unaccountable to Congress for her agency’s budget or its actions. When Ms. Warren refused to remain longer than one hour to testify before a House Oversight subcommittee hearing, the subcommittee chairman, Rep. Patrick McHenry, complained in a news release: “I was shocked by Ms. Warren’s blatant sense of entitlement. She was apparently under the assumption that she could dictate a one hour time limit for her testimony to Congress and that we were there at her behest instead of the other way around. This is just further example of her disregard for congressional oversight.” But Congress enacted the legislation that set up the CFPB so it would NOT be subject to direct congressional oversight. So, in the final analysis, who’s at fault here?
- Last, but not least, during the seemingly interminable wrangling about the debt ceiling we all have endured for the last three weeks or so, Congress considered yet one more way to weaken its own checks on the Executive branch. Senator McConnell actually suggested that the Congress should cede to the President its power to raise the debt ceiling, allowing the President to do so at his will. (See the article HERE, beginning with the section header “UNCONSTITUTIONAL” for a complete discussion of McConnell’s scheme.) That didn’t come to pass, but the fact that the maneuver was contemplated at all is astounding.
Progressives clearly favor vesting power in an administrative bureaucracy within the Executive branch peopled with “experts” in every conceivable field that “know better” than John Q. Public, but that power has to come from somewhere. “Somewhere” appears to be the Legislative branch. It is mind-boggling that sitting senators and representatives would be complicit in weakening the branch in which they serve, yet simultaneously bemoan the fact that, in the words of comedian Rodney Dangerfield, they “don’t get no respect” from the bureaucrats who are flexing the regulatory, and in some cases the legislative, muscle Congress has ceded to them.
In the words of the immortal Connie Francis…
Who’s sorry now?
If our representatives in Congress aren’t sorry yet, Yoda has the following message for them:
Notes & References [ + ]
|1.||↑||Editor’s Note: The link included to Congressional approval polls is the full history of the Real Clear Politics tracking, which dates back several years. The only “RCP Average” shown is for the most recent set of polls. Note that RCP does not use all of the available polls in aggregating their data, although they obviously use quite a few and they are widely recognized as the major firms. For an additional, yet slightly different perspective, see Rasmussen Reports archive of polls based on the premise of a generic election of Democrats vs. Republicans for Congress.|