Congress Seems Happy to Have Its Powers Usurped

By Charles C. W. Cooke

Friday, November 21, 2014

To adapt a line from Thomas Frank, we might today ask ourselves, “What’s the matter with Congress?” Last night, in Las Vegas, the head of the executive branch announced what amounts to a remarkable usurpation of legislative authority — and a significant portion of the legislature applauded. Before his speech, a raft of House Democrats had urged Obama to go as far as he pleased, comparing his impending behavior to that of Abraham Lincoln and Harry Truman and recording for posterity that they had his back. “What we want the president to do,” Luis Gutierrez confirmed, “is act big, act bold, act broadly, and act soon.” In the Senate, meanwhile, Elizabeth Warren expressed her approval, as did power-players Harry Reid, Dick Durbin, Chuck Schumer, Patty Murray, Bob Menendez, and Michael Bennet. With a few virtuous exceptions, those that did not champion the action elected at best to remain silent. Qui tacet consentire videtur, ubi loqui debuit ac potuit.

This acquiescence is of great consequence. For all the hand-wringing and the righteous indignation that will presumably now be forthcoming, the root cause of the Republican party’s present dilemma is that the body that it leads has largely elected to abdicate its constitutional role — not, as President Obama likes to imply, because it has failed to do what the White House wishes it to do, but because it is proving so shamefully unwilling to defend its authority. On Twitter this morning, a user going by the name of “Thomas H. Crown” asked a pertinent and perspicacious question: “If at least forty percent of the country and/or forty percent of Congress is behind him,” Crown inquired, “why would any President enforce laws?” Alas, there is no obvious answer to the query, for in such a circumstance the president is not only immune from impeachment but he is largely protected against all other major attempts to retaliate against his usurpations, too. When, as now seems to be the case, there is a significant bloc within the legislature that is more interested in outcomes than in process, the stage is set for an emperor.

The abuses have been particularly egregious in the age of Obama. Nevertheless, our present predicament has been a long time in the making. During George W. Bush’s presidency, Republicans routinely took a back seat, a majority of self-described conservatives happily permitting the executive branch to treat them as if they were members of a parliament rather than representatives of a separate and equal branch. In both the 1970s and the 1990s, regulations intended to ensure that Americans enjoyed clean air granted so much authority to the White House that the aims of the enabling legislation became almost impossible to achieve. And, in the 1960s, Congress ceded its role in the war-making process almost entirely, the overly broad Gulf of Tonkin Resolution having accorded to the Johnson administration the opportunity to “take all necessary measures” in pursuit of victory in Vietnam.

We are learning today, perhaps, that our immigration laws are no exception to this deleterious trend. Indeed, that we are even debating whether an American executive enjoys the power to rewrite the country’s immigration regulations should tell us something of paramount and immediate importance: namely, that the laws under which we live today are too broad, too numerous, and far too ripe for exploitation. In my view, President Obama’s latest actions represent a flagrant violation of his responsibility to “faithfully execute” the laws, and a repudiation of the political and constitutional norms that undergird the republic. Wherever lies the point at which legitimate and statutory “discretion” becomes unjustified amendment or cynical nullification of the law, the executive branch sailed past it last night at warp speed. Still, if the specific action that he is taking can be held by loose construction to be permitted per se . . . well, then our laws need rewriting from the ground up.

That there will likely be little enthusiasm for such an endeavor suggests that the republic is headed, gradually, toward a crisis. The Madisonian settlement that has done the country so proud rests heavily on two presumptions: The first, that the fragmentation of political authority will invariably set the various branches off against one another; the second that, motivated by ambition as they tend to be, almost every representative within the firmament will remain sufficiently jealous of his prerogatives to willingly check the rise of his foes. “The accumulation of all powers legislative, executive and judiciary in the same hands,” Madison writes in Federalist 47, “whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” “Powers properly belonging to one of the departments,” he wrote a few weeks later, “ought not to be directly and completely administered by either of the other departments.” Supposing that each person involved in government would place the interests of his branch before his own political proclivities, Madison concluded that to fracture power was to forestall dictatorship and to ensure the rule of law and not of men.

Madison’s insight is no less relevant today than it was in the late 18th century. And yet, as we have learned to our detriment, parchment is not enough to guarantee liberty. As the Founders understood well, the continuing integrity of a free republic is heavily reliant upon the goodwill of its political actors. We are being reminded today that the mere fact of one’s being a legislator is not sufficient to guarantee that one will defend one’s branch against usurpation. Indeed, in some cases, the opposite may be true. In the West, people like to remember the English Civil War as a clean fight between a despotic King and a besieged Parliament — a glorious and influential brawl in an ongoing struggle between absolutism and republicanism. And yet we often fail to acknowledge that not everybody within that parliament took his own side. On the contrary: A significant number of the “Tories” who backed Charles I were themselves legislators, who, for political or personal reasons, threw their lot in with the monarchy against their own prerogatives. To old Whigs and classical liberals, it is axiomatic that absolute monarchy is a sincere ill. For us, the very fact that Charles I ruled without parliament earns him the title of “tyrant.” But not all people see the world this way, and we might take a moment to remember that not only was Charles’s “personal rule” extremely popular among many in the countryside, but that it has been refurbished by some historians as an era of “creative reform.” Policy uber alles and all that.

Outlining his position in both 1629 and 1640, Charles proposed that “Kings are not bound to give an account of their actions but to God alone.” One should expect to hear such declarations from monarchs and from potentates, but one would not anticipate seeing so many of the victims of his self-aggrandizement nodding happily along. The challenge of the Madisonians, now as then, is to outnumber the enablers and to reassert our legislature as the lead arbiter of our domestic government. As long as there is politics, the brazen and the obsequious will always be among us. But that Harry Reid and his craven coterie have chosen to be cavaliers does not mean that we all have to be. Up with the roundheads, and down with the king.