Congress Must Find Its Backbone and Regain Lawmaking Primacy

This article appeared on Washington Examiner on December 21, 2020.
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In our constitutional system, Congress is supposed to make the laws. Yet in today’s federal government, presidents do most of the lawmaking through regulation. That’s why, when the White House changes hands this January, thousands of law‐​like rules will pivot 180 degrees, affecting every aspect of life. To end these jarring legal shifts and restore crucial safeguards for “We the People,” Congress must regain its footing within our constitutional system.

Although the Constitution vests “all legislative powers” in Congress, that body has “delegated” much of its lawmaking capacity to an alphabet soup’s worth of regulatory agencies under presidential management, collectively known as the “administrative state.” Think: the Equal Employment Opportunity Commission, the Food and Drug Administration, the Occupational Safety and Health Administration, among countless others. Last year, for example, Congress passed about 100 laws, while agencies issued about 3,000 regulations with the force of law.

Upon taking office, one of Joe Biden’s first actions will be to order a halt to all administrative lawmaking that started under the Trump presidency. Then, the machinery of the administrative state will recalibrate and start producing thousands of new rules that have a different ideological gloss from the ones they replace. This happens every time the White House changes hands in the modern era.

By now, alas, Congress has given away enough of its policymaking authority such that the legislature rendered itself expendable. When a president wants a law made, he can go it alone.

Consider the border wall. In late 2019, the government shut down as President Trump and House Speaker Nancy Pelosi played hardball over its funding. Ultimately, the president caved, when, in early 2020, he signed an appropriations bill without money for the wall. It appeared that the House of Representatives had won a hard‐​fought battle. But then, Trump mooted the entire fight by tapping into his delegated power. By simply declaring a “national emergency,” Trump was able to unlock existing legal authority to reshuffle appropriations and start building his wall.

This sort of executive lawmaking is nothing new. President Barack Obama famously resorted to his “phone and pen” to implement broad immigration and climate policies that had been denied by Congress. It was much the same with Presidents George W. Bush and Bill Clinton. Today’s presidents don’t need Congress to fulfill their agendas.

It wasn’t always this way. At first, when Congress gave away its power, the “delegations” came with strings attached. For much of the last century, Congress took a keen interest in overseeing its creation, the administrative state. Congressional committees battled with one another for jurisdiction over regulatory agencies, and then they battled with presidents to manage these agencies.

Yet, over the last few decades, our increasingly polarized legislature has become a shell of its former self. In the contemporary Congress, political party trumps institutional pride. As a result, half of Congress loses interest in overseeing the administrative state whenever “their guy” occupies the Oval Office.

Our government is caught in a constitutionally dangerous feedback loop. The better the president gets at exercising unilateral power, the more entrenched the partisan divide becomes in Congress, which, in turn, invites greater executive overreach and lesser congressional oversight.

These trends are eroding our constitutional structure. After all, the whole point of the separation of powers is to ward off the concentration of power.

Further, Federalist 62 warns that an “excess of lawmaking” is a “disease.” That’s why the Constitution makes it hard to pass laws. Yet Congress has gotten around this constraint by making it easy for agencies to issue regulations with the force of law. Because regulations are so much easier to achieve, the administrative state is more susceptible to the “disease” of excessive lawmaking. Overbearing government is a threat to liberty, regardless of whether it flows from the executive or legislative branches of government.

In addition to these constitutional concerns, there are practical consequences for everyday people. “The administrative state,” Chief Justice John Roberts once observed with alarm, “touches almost every aspect of daily life.” Every time there is a party changeover in the Oval Office (like the one approaching on Jan. 20), the rules governing “daily life” undergo a sudden and wholesale ideological shift. Federal law, in practice, is distressingly unstable.

What can be done? Although there are hopeful signs that the Supreme Court will start policing how much lawmaking power Congress can “delegate” away, true change can come only from the legislature. Our government will remain dangerously unbalanced until lawmakers understand that the presidency, and not merely its officeholder, is the Congress’s constitutional rival.

William Yeatman and Christian Townsend

William Yeatman is a research fellow, and Christian Townsend is a legal associate, both at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.