Commentary

Congress Should Restrain the President

Something surprising was said during the debate on the intelligence reform bill. Rep. Carolyn Maloney (D-N.Y.) declared, “We will see today or this week who is running the country, powerful [congressional committee] chairmen or the president of the United States.”

It’s surprising that a Democratic member of Congress would want to grant such power to a Republican president. Unfortunately, the only thing surprising about it is that it came from a Democrat. It’s usually members of the president’s own party who declare that Congress’s role is to do what the president asks. For instance, when President Bush proposed a sequel to the PATRIOT Act, a Capitol Hill Republican told the New York Times, “We have to be as supportive as we can of the president.”

Neither Maloney nor the anonymous Republican displayed the attitude James Madison expected members of Congress to have toward the president. The president is not a dictator. He does not “run the country.” Indeed, his job under the Constitution is to “take care that the laws be faithfully executed.” But “all legislative powers herein granted” are granted to Congress. It is Congress’s responsibility to make the laws, not to delegate its lawmaking power to the president.

Advocates of an imperial presidency ask who comprehends the general will of the American people. Their answer: the one official elected by all the people — the president of the United States. Unlike Congress, they believe, he represents the national interest, not just the parochial interests of states and vested interests. The voters have chosen the president, and Congress should carry out his Sun God-like “mandate.” If Congress refuses to execute the general will, then presidents increasingly claim the power to rule by decree, through executive orders.

Such an idea is poisonous. It would replace the constitutional safeguards against majoritarianism with a president virtually unconstrained in his ability to do good, as he sees it, for the people.

Congress has an important constitutional role. Too often we assume that only the Supreme Court has the duty to uphold the Constitution. In fact, every person elected or appointed to office takes an oath to “support and defend the Constitution of the United States.” The first duty of every official is to act within the authority of the Constitution and to ensure that other officials do so as well.

Recent presidents have blithely exceeded the powers granted to them under the Constitution. They should be held accountable for those abuses of power — by Congress. Thanks to its negligence, Congress bears a significant part of the blame for presidential excesses.

If they would like to curb executive excesses, members of Congress may want to turn their attention to four tasks:

Limit the President’s war powers. In affairs of state, no more momentous decision can be made than the decision to go to war. For that reason, in a democratic republic it is essential that that decision be made by the most broadly representative body: the legislature. That is where our Constitution lodges the power to declare war. As James Madison put it, “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

The Clinton administration espoused a view of executive war-making authority that was as unconditional and unconstrained as that claimed by any president in American history. In fact, presidents from Lyndon Johnson and Richard Nixon through George H. W. Bush and Bill Clinton asserted their authority to put American troops in harm’s way without the consent of Congress, and the congressional resolution after September 11 delegated sweeping powers to the current President Bush.

To ensure that we remain a constitutional republic, not a presidential empire, Congress should reclaim its power under the Constitution to debate and decide on questions of war and peace.

Stop the abuse of executive orders. Presidents have increasingly used executive orders to make law, a clear usurpation of both the legislative powers granted to Congress and the powers reserved to the states. Facing a Republican Congress, President Clinton used executive orders to create a 1.7-million-acre national park, impose environmental regulations, and wage war in Yugoslavia. President Bush has used executive orders to grant himself extraordinary powers to deal with terrorism.

No matter what agenda the president seeks to impose by executive order, Congress should put its foot down. The body to which the Constitution delegates “all legislative powers herein granted” must assert its authority.

Stop delegating lawmaking authority to the federal bureaucracy. The Constitution grants to the executive branch only the power to execute the laws, not to make them. That separation of powers is a key element of the constitutional design. The Founders feared nothing more than the concentration of powers in one set of hands.

But since the 1930s Congress has gotten into the habit of passing broad laws and leaving the details up to administrative agencies. Congress likes to proclaim noble goals, promise good results, and leave it to unelected bureaucrats to deal with the inevitable tradeoffs and costs of such goals. Congress cannot delegate its lawmaking authority to any other body, nor should it want to do so.

Consider the Constitution when passing laws. Ours is a government of delegated, enumerated, and thus limited powers. If a power is not granted to Congress in the Constitution, then Congress lacks the authority to legislate in that area. For too long the country has drifted toward the idea that everything from our retirement insurance to our local schools to our marriage law is a proper subject for federal legislation.

In the past decade the Supreme Court has commendably begun to strike down laws that exceed the powers granted to Congress in the Constitution, but members of Congress should not leave it to the Supreme Court to decide whether laws are constitutional. Every member of Congress took an oath to uphold the Constitution, which is, I remind, an oath not vote for laws they cannot justify under the Constitution.

Before voting for any bill, each member of Congress should ask, “Where in the Constitution is the authority to pass this law?” If it cannot be found, representatives should vote the bill down. And then, if the president or federal regulatory officials should attempt to legislate on the matter extraconstitutionally, Congress should remind them who makes the rules.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer (Free Press, 1998).