No to ‘Executive Beast Mode’

By Charles C. W. Cooke

Wednesday, July 20, 2022

 

President Biden is once again gearing up to utter a series of words that ought to inspire Americans to search in exasperation for their pitchforks: “If Congress won’t do it, I will.”

 

If it can raise itself from the reverie that our imperial presidency has imposed upon it, the public’s emphatic response to the president’s climate plan must be, “No, you damn well will not.” Article I of the U.S. Constitution vests “All legislative Powers” in Congress, not in the White House, and, in exercising those powers, Congress’s judgment is not advisory, but binding. If, as is often the case, Congress declines to act in a given realm, the result is not a transfer of authority, it is inertia. There is no such thing as a Too Important Clause in our highest law, nor is there any provision that accords lawmaking powers to the executive branch in such cases as its friends consider the legislature to be irresponsible. There are, indeed, a handful of statutes on the books that grant the executive some emergency powers, but those are not enabling acts, and, funnily enough, they require the existence of an emergency before they can be applied. No emergency exists in this case. That the Democratic Party has been unable to get its agenda past its own senators is presumably frustrating for it, but it does not count as a crisis under any plausibly interpretation of that term.

 

The case that progressive lawmakers have begun to assemble in support of President Biden’s threat is terrifying. Senator Whitehouse (D., R.I.), has proposed that “with legislative options now closed, the President must act. It’s time for executive Beast Mode.” Senator Bernie Sanders (D., Vt.), has called for executive usurpation, “given the inability of Congress to address the existential threat.” Senator Merkley, of Oregon, has endorsed a declaration of emergency, on the grounds that it “unchains the president from waiting for Congress to act.” In Federalist No. 51, James Madison described the Constitution’s separation of powers as a means by which “ambition must be made to counteract ambition.” By pleading with another branch to ignore and override their own, Senators Whitehouse, Sanders, and Merkley have moved from counteraction to facilitation. Whither, pray, those restored norms?

 

Alarmingly, even those who can intuit the shortcomings of the Whitehouse–Sanders–Merkley approach seem curiously unable to recognize why. “While I strongly support additional executive action by President Biden,” Senator Ron Wyden has conceded, “we know a flood of Republican lawsuits will follow. Legislation continues to be the best option here.” Does it? Why, though? That “flood of Republican lawsuits” Wyden anticipates. What does he imagine that they will say? Will they be full of unintelligible screams, or will they argue, perhaps, that the Constitution does not accord the executive branch the power to do whatever it wants every time that it believes that the issue is really important? A few weeks ago, after the Supreme Court had reminded Congress that it — and not the president — is charged with making law, Representative Rashida Tlaib described the judiciary as “fascist.” Helpfully, Tlaib provided a definition of this term. “Fascism,” she proposed, is a system in which “the federal government will be restricted from regulating anything of significance in the absence of a clear congressional directive to do so.” That, as the kids like to say these days, is “telling on yourself.”

 

As ever, the truth is far more prosaic. The Democrats’ problem is not that the Supreme Court is “fascist,” but that the “clear congressional directive” to which Tlaib refers without irony simply has not arrived. For more than a year, Democrats have attempted to deliver it, and, thus far, they have failed. That, not some shady interference from John Roberts, is what the New York Times is pointing to when it observes that Biden’s “legislative plan for global warming [is] in shreds.” That, not some “ultra MAGA” ghost, is what the Washington Post means when it records that legislators have heretofore been unable to “advance any bill using the process known as reconciliation.” That, not some faceless force labeled “obstructionism,” is what Senator Whitehouse means by “legislative options now closed,” what Senator Sanders means by “the inability of Congress,” and what Senator Merkley means by “waiting for Congress to act.” To respond to the Supreme Court’s refusal to allow the executive branch to exceed its authority with a call for the executive branch to exceed its authority would be the very definition of madness. Under the American system of government, there is only one appropriate response to the discovery that one lacks the votes to advance one’s preferences, and that response is not to establish some tin-pot, “unchained,” “Beast Mode” dictatorship. It is to lose.