Tag: federalist

Congress: The Least Dangerous Branch

That’s the topic of my Washington Examiner column this week. In it, I discuss last week’s budget battle and the failure of “policy riders” designed to rein in the Obama EPA’s attempts to regulate greenhouse gases without a congressional vote specifically authorizing it. The Obama team believes it has the authority to implement comprehensive climate change regulation, Congress be damned. Worse still, under current constitutional law–which has little to do with the actual Constitution–they’re probably right. Thanks to overbroad congressional delegation, “the Imperial Presidency Comes in Green, Too.” At home and abroad, the legislative branch sits on the sidelines as the executive state makes the law and wages war, despite the fact that “all legislative powers” the Constitution grants are vested in Congress, among them the power “to declare War.”

Yet, as I point out in the column, Congress retains every power the Constitution gave it–powers broad enough that talk of “co-equal branches” is a misnomer. Excerpt:

The constitutional scholar Charles Black once commented, “My classes think I am trying to be funny when I say that, by simple majorities,” Congress could shrink the White House staff to one secretary, and that, with a two-thirds vote, “Congress could put the White House up at auction.” (I sometimes find myself wishing they would.)

But Professor Black wasn’t trying to be funny: it’s in Congress’s power to do that. And if Congress can sell the White House, surely it can defund an illegal war and rein in a runaway bureaucracy.

If they don’t, it’s because they like the current system. And why wouldn’t they? It lets them take credit for passing high-minded, vaguely worded statutes, and take it again by railing against the bureaucracy when it imposes costs in the course of deciding what those statutes mean.

Last year, in the journal White House Studies [.pdf], I explored some of the reasons we’ve drifted so far from the original design:

Federalist 51 envisions a constitutional balance of power reinforced by the connection
between “the interests of the man and the constitutional rights of the place.” Yet, as NYU‘s Daryl Levinson notes, ―beyond the vague suggestion of a psychological identification between official and institution, Madison failed to offer any mechanism by which this connection would take hold…. for most members, the psychological identification with party appears greatly to outweigh loyalty to the institution. Levinson notes that when one party holds both branches, presidential vetoes greatly decrease, and delegation skyrockets. Under unified government, “the shared policy goals of, or common sources of political reward for, officials in the legislative and executive branches create cross-cutting, cooperative political dynamics rather than conflictual ones.”

Individual presidents have every reason to protect and expand their power; but individual senators and representatives lack similar incentive to defend Congress’s constitutional prerogatives. “Congress” is an abstraction. Congressmen are not, and their most basic interest is getting reelected. Ceding power can be a means toward that end: it allows members to have their cake and eat it too. They can let the president launch a war, reserving the right to criticize him if things go badly. And they can take credit for passing high-minded, vaguely worded statutes, and take it again by railing against the executive-branch bureaucracy when it imposes costs in the course of deciding what those statutes mean.

In David Schoenbrod’s metaphor, modern American governance is a “shell game,” with We the People as the rubes.  That game will go on unless and until the voters start holding Congress accountable for dodging responsibility.

Justice Scalia Speaks to the Congressional Tea Party Caucus

Today POLITICO Arena asks:

Is there anything inappropriate about Justice Scalia’s speaking about the Constitution before Rep. Michele Bachmann’s Tea Party Caucus, as the New York Times editorial board suggests? Is it time to drop the fiction of a judicial monastery with justices detached from the political process?

My response:

There is nothing inappropriate about Justice Scalia’s speaking today before the congressional Tea Party Caucus – or any other group, for that matter, that is well within the mainstream of American politics. As POLITICO reports, Rep. Bachmann’s event is open to all members of Congress, and several Democrats have said they’ll attend.

The complaint by the editorial board of The New York Times –  that “the Tea Party epitomizes the kind of organization no justice should speak to” –reflects nothing more than that corner’s refusal to accept the legitimacy of the Tea Party, notwithstanding last November’s elections. When the board goes on to condemn the Tea Party’s “well-known and extreme point of view about the Constitution,” it might better direct its wrath at James Madison. After all, as the principal author of the Constitution, he’s the Framer who promised in Federalist 45 that the powers of the new government would be “few and defined” – the “extreme” view the Times editorialists regularly condemn.

In deciding cases, judges and justices need to be detached from politics, of course: They belong to the “non-political branch.” But that hardly precludes them from talking about the Constitution in political contexts. If anything, it is the Congress that needs to be more attentive to the Constitution its members take an oath to uphold. That, in fact, is the root of our problem today. And we have the Tea Party to thank for noticing it.