The Letter and the Law

By Kevin D. Williamson

Tuesday, March 10, 2015

What, exactly, is the point of that great big hulking building with the cast-iron faux Roman dome in Washington? Joe Biden worked there for many years, and Barack Obama worked there for about five minutes, and neither of them has figured it out.

“Biden Rebukes Senate Republicans over Letter to Iran,” harrumphs the New York Times, Gomer Pyle and Forrest Gump apparently having been otherwise occupied. Joe Biden is a national figure of fun, and it is difficult to remember that Barack Obama’s campaign brought him into the fold for his special brand of gravitas, which is, like the subtle notes of freshly cut grass and charred orange rind emanating from a freshly decanted bottle of fine wine, detectable only by the rarest breed of connoisseur and the most common sort of bulls–t artist. Before becoming president, Barack Obama’s main foreign-policy experience had been gazing wistfully at a Rand McNally desktop globe and trying to figure out which spot on earth would place him the farthest from the Rev. Jeremiah Wright. Joe Biden was added to the ticket purportedly to ease our national mind about the question of whose hand was on The Button. People joke that Biden’s real role in the Obama administration is acting as a human insurance policy against assassination, and, if you think about the key Democrat players of the Obama years — Biden, Hillary Rodham Clinton, Janet Napolitano, Eric Holder — there does seem to be a walk-tall-among-the-dwarves strategy in place.

Biden is tumescent with indignation because 47 senators reminded the president — by reminding the Iranians with whom he is engaged in nuclear negotiations — that the president does not have the authority to enter into a binding, long-term international agreement based on nothing more than his own juice. If he cuts a bad deal, Congress can reject it — something the Atomic Ayatollahs ought to have in mind.

Naturally, the Left is in convulsions: President Obama accused Republicans of making common cause with the hardline elements in an infamous state sponsor of terrorism. The progressive pompom squad, who the day before yesterday were beside themselves with horror at the thought that anybody would question whether a political rival was a patriot, began screaming that this is — their word — “treason.”

Which seems a bit much for giving Tehran a quick primer on American civics — one that Barack Obama might benefit from as well.

Congress is invested by the Constitution with many of the most important powers in foreign affairs: Only Congress can declare war. Only the Senate can approve a treaty for ratification. Secretaries of state and ambassadors are subject to Senate confirmation. (The Senate does not always take that as seriously as it should: President Obama is in the habit of appointing his financial benefactors, gentlemen with deep pockets and shallow minds, to embassies.) An international agreement entered into without congressional approval is only an executive order, subject to instant revision or being vacated entirely.

Biden sees things differently. He chided Republicans and advised them to keep in mind that “the vast majority of our international commitments take effect without congressional approval.” And that, of course, is the problem.

If you look up through the oculus in the Capitol dome, you will see a hideous piece of 19th-century kitsch called “The Apotheosis of Washington,” a fresco painted by Constantino Brumidi, whose work would be better suited to a vulgar Donald Trump interior than to the legislative seat of a republic. The message there is a pretty bad one: “Apotheosis” means deification, the Capitol itself is modeled on a Roman temple (and was, in fact, used as a house of worship for many years), and the word “capitol” itself deriving from Roman site of the temple to Jupiter Optimus Maximus. The apotheosis of Julius Caesar symbolically marks the end of the Roman republic and the beginning of the Roman empire. The apotheosis of Washington, seated upon a cloud and surrounded by gods and maidens, is a grotesque image in the context of a constitutional republic — and an image that has turned out to be tragically prescient, raising the president, godlike, above the mere mortals below engaged in the bland and unheroic business of making laws and being citizens instead of divinities.

Congress, being dominated for the moment by Republicans, may finally have been roused to check the arrogations of this president, individually. But the more important project is checking the arrogations of the president, categorically — reining in the presidency as such. The vice president is correct when he says that the “vast majority of our international commitments take effect without congressional approval.” Worse, the vast majority of our laws do, too: The law that most of us encounter is the administrative law, the regulatory output of the executive branch. The model for that is the so-called Affordable Care Act, essentially an enabling act instructing the executive branch to create a health-care system to the president’s liking. By 2013, there were 30 words of regulation for every one word of law in the ACA, which itself is thousands of pages long. Congress hasn’t bothered declaring a war since after Pearl Harbor, and its current open-ended version of that — authorizations for the use of military force — are so liberal as to amount to carte blanche. Not only in the matter of health care, but on other critical domestic concerns, its instinct is to pass a dog’s breakfast of a bill and empower the president and his minions to do with it what they will.

It has often been observed that the presidency attracts gasbags, and students of physics know that a gas — be it oxygen or hydrogen cyanide — will expand to fill its container. Executive power is always and everywhere — even in the most finely wrought constitutional systems — opportunistic. Where Congress retreats, the presidency will encroach. When such encroachments are allowed to stand long enough, they acquire a patina of respectability.

We can have three equal branches of government, or we can have a chaotic quasi-monarchy run on four-year intervals. If it takes a little partisan self-interest to inspire Congress toward a degree of institutional self-respect, so be it.