At the Senate hearing on the nomination of Lisa Jackson to be administrator of the Environmental Protection Agency, Sen. Barbara Boxer pressed Jackson to regulate coal ash in the wake of two spills in Alabama and Tennessee. "You have the authority to regulate this," Boxer told Jackson.
And, Boxer warned, if the unelected bureaucracy at EPA doesn't issue a regulation soon, Congress just might have to legislate: "If we are not satisfied with action, we may move legislatively."
As it happens, Article I, section 1, of the U.S. Constitution stipulates, ‘‘All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.’’ And as David Schoenbrod and Jerry Taylor wrote in the Cato Handbook for Congress:
For the first 150 years of the American Republic, the Supreme Court largely upheld the original constitutional design, requiring that Congress rather than administrators make the law. The suggestion that Congress could broadly delegate its lawmaking powers to others— particularly the executive branch— was generally rejected by the courts.
Today the chair of the U.S. Senate's Environment and Public Works Committee tells a nominee for a position in the executive branch that if the bureaucracy won't exercise Congress's powers, Congress just may have to. (I'm not addressing here whether regulation of coal ash is a good idea, just the question of who should issue important and costly regulations.)
Of course, this comes a couple of weeks after President Bush said that if Congress wouldn't give taxpayers' money to General Motors and Chrysler, he would. In effect, his last grab for executive power was the power to appropriate money from the public fisc. But as Gene Healy pointed out, even here Congress was as much at fault as the president: it had effectively given him carte blanche in the TARP legislation, just as it did in the authorization for the Iraq war.
Congressional spinelessness is at least as big a factor as presidential arrogance in the rise of executive power.