The Age of Irresponsibility

By Noah Rothman

Wednesday, May 22, 2019

This week, Nevada’s legislature became the latest to approve the National Popular Vote Interstate Compact—a measure that would, in theory, render the state’s voters irrelevant in a presidential election if a majority of the Union’s member states were to disagree with them. If it went into effect, the pact would delegate a signatory state’s Electoral College votes to the presidential candidate who amasses the most popular votes nationwide. Of course, this pact isn’t worth the paper it’s printed on.

The compact is only supposed to take effect when the number of member states constitutes an Electoral College majority—270 votes. Even if Nevada’s governor signs the bill, the pact is still 75 votes short. But the stakes associated with signing on to this compact go lower still. Unless ratified by Congress, interstate compacts are explicitly unconstitutional. The Supreme Court ratified this principle as recently as 1978, and with more deference to federal authority than the Court is likely to show today. Tampering with the Electoral College is fraught. Eliminating it entirely and establishing the one and only federal election would require a constitutional amendment, and sacrificing the states’ plenary power to choose electors that represent their citizens in favor of non-state residents invites any number of lawsuits from the candidates and voting groups it disenfranchises.

More troublingly, though, is the principle this compact sacrifices. The Tenth Amendment—guaranteeing arguably the most unloved liberty enshrined in the Bill of Rights—delegates to the states their reserved powers, which James Madison noted were “numerous and indefinite” whereas the delegated powers to the federal government were “few and defined.” The states in the national popular vote compact are essentially delegating their sovereignty to anyone willing to take it.

This is part of a disturbing trend. Downstream from a general decline in a culture of personal responsibility in America, there appears to be an emerging culture of institutional irresponsibility.

The compact’s states are only following Congress’s lead. As Yuval Levin wrote for Commentary last year, Congress appears in a weakened state because it’s members no longer covet the powers delegated to them by the Constitution. In every major recent dispute with the executive branch of substance—from Barack Obama’s usurpation of the authority to legalize non-citizen residents to Trump’s assumption of the power to regulate firearm accessories out of existence—the legislature has deferred to the courts.

The problem has only grown worse in the intervening months. Donald Trump’s alleged usurpation of legislative authority is often derided by his critics as the stuff of autocrats, but he’s only taking advantage of the powers delegated to his office by Congress.

Trump’s border wall is currently being constructed by the U.S. military according to what the president insists is his authority under the National Emergencies Act. The use of funds in ways that are not explicitly authorized in congressional appropriations resulted in a protest vote from Congress—one that included 12 dissenting Republican senators—but didn’t attract a majority large enough to override a presidential veto.

When Trump wants to avoid a bruising confirmation fight and subvert the Senate’s power to provide advice and consent on appointments to federal posts, he cites the Federal Vacancies Reform Act to justify his reliance on acting Cabinet officials and department heads.

When the president wants to raise tariffs on key American allies and trading partners under the guise of national security, he invokes the authority granted him by the Trade Expansion Act. Congress has relied on a sense of presidential propriety to impose limits on the scope of this authority, but that has proven insufficient to stay this president’s hand.

If the president decides to make good on his campaign-trail promise to forcefully deport thousands of illegal immigrants outside the standard legal channels, his aides insist that he will cite presidential authority in the statutes that constitute the Insurrection Act.

Lawmakers moan and wail, rending garments over the president’s assumption of their legislative prerogatives. But they dare not act lest they be held accountable for that action.

Even what the Democrats currently describe as a “constitutional crisis” regarding the president’s efforts to obstruct congressional oversight and ignore their subpoenas is, in reality, a crisis only of legislative lethargy. As Adam J. White astutely argued, House Judiciary Committee Chairman Jerry Nadler’s arguments for why former White House Counsel Don McGahn should be compelled to testify before his committee are predicated on a misunderstanding of where the executive branch ends and the legislative branch beings. Lawmakers have confused their political authority to oversee the executive with the prosecutorial powers vested in Article II.

Even amid the exercises of all this executive authority, the president prefers to portray himself as a victim. Television programmers and social media executives plot to silence him and his supporters. Unfair coverage in the political press places a ceiling on his support in the polls. Trump’s own justice department is engaged in a conspiracy to overturn the 2016 election results. It may seem imprudent for an executive to seek reelection not on his own accomplishments but a lack thereof as a result of the forces arrayed against him. But then again, the themes “obstruction,” “exploitation,” and “extremism” served Barack Obama’s reelection efforts just fine.

In fact, all these sacrifices of power are justified by perfectly rational political considerations. The voters want to sacrifice their sovereignty to the collective. Lawmakers derive more authority today from infamy than efficacy. House Democrats would rather outsource the role of making the case against Trump’s overreach in 2020 to the party’s presidential nominee than assume that duty for themselves. In the aggregate, this amounts to a crisis of authority, although perhaps one the Founders failed to anticipate: authority that no one seems to want.