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Robert Bennett: Congress should reclaim its powers

Published: Monday, Aug. 19 2013 12:00 a.m. MDT

When the Constitution was written, its authors assumed that the most powerful branch in the government would be the Congress, which held the sole power to create law and had full control of the purse strings. James Madison, "the Father of the Constitution," began his career there, as a member of the House of Representatives. Because its members went before the voters every two years, keeping them abreast of the mood of the country, the House was expected to be more important than the Senate.

It has not worked out that way. For a variety of reasons, the House was surpassed by the Senate as a center of power during the 19th century and Congress itself was surpassed by the presidency as a center of power in the 20th. Recent Congresses have taken steps that cripple their power even further, with both parties participating.

They began by banning "earmarking," on the grounds that the procedure was responsible for increased government spending. But "to earmark" means "to designate, or set aside." It does not mean "to increase," and its use did not have that result.

Example: When the Moss Courthouse in Salt Lake became woefully inadequate for the needs of this rapidly growing state, Utah's congressional delegation convinced Congress to earmark — designate — enough money to build an addition to it. This did not increase total spending on courthouses, but it did prevent the president from sending the money anywhere else. Democrats agreed to this because they knew our need was legitimate.

One senator described the consequences of the earmark ban this way. "When I hear from people in my state now, I say, 'Congress has given up its control of how money is spent. Here's Barack Obama's phone number.' "

Congress diluted its constitutional power further when it abandoned the process of "regular order" — the established way of budgeting and appropriating money. By funding the government through the use of "continuing resolutions" that deal only with total numbers, it gave up its power to monitor spending details.

Example: when the sequester happened, all of the decisions as to where specific cuts would be made were solely in the president's hands.

Now some members of Congress are saying they are willing to use what constitutional power they have left to "shut down the government," if that is what it will take to "defund" Obamacare. Really?

The Constitution was adopted "... to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Which of these goals will be accomplished if the Congress shuts down all government services?

The question answers itself, which is why the threat is a hollow one. Everyone knows that we will not shut down air traffic control, grounding all airplanes; close our embassies, disrupting all foreign policy; recess the courts, ending all judicial activity, or stop paying our soldiers. Along with the record of the past five years, talk of completely shutting down the government explains why the approval rating for Congress is now at 10 percent.

I am not defending Obamacare. I voted against it. I believe it will make our health care situation worse, not better. I would be delighted to see it replaced by something that makes more sense. All that said, its existence does not justify even discussing an action that would be Congress's final abdication of all of its constitutional responsibilities.

To regain its credibility, Congress needs to re-establish sensible procedures, reclaim its rightful powers and do the job the Founders gave it. James Madison would be appalled.

Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.

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