On Tuesday evening, Jan. 28, amidst the pomp and circumstance reserved for the most ceremonial of occasions, President Obama will take to the podium on the dais of the United States House of Representatives and deliver his State of the Union address. If the past is any indication, the president will unveil a grandiose domestic agenda, call for even more deficit spending to create suddenly “essential” new programs to “put Americans to work”, while gently, backhandedly, chiding congressional Republicans for standing in the way of progress.
The president will then return to the White House and implement his agenda, with or without congressional approval, through the use of executive orders.
Last week, President Obama stated emphatically to his cabinet, “We’re not going to be waiting for legislation in order to make sure that we’re providing Americans with the kind of help they need,” and that “where Congress isn’t acting, I’ll act on my own.” The clear subtext to these comments is the president’s unshakable belief that he, not Congress, knows what laws and policies are best for the American people, demonstrating a flippant (even blatant) disregard of the constitutional separation of powers. This seems incongruous with the presidential oath to “preserve, protect and defend” the Constitution.
Naturally, these statements sparked a fiery rebuke from congressional leaders, but there may be very little Congress can do to stop the president from acting. He is certain to veto any legislative attempt to rein in his administration, and the courts have historically been hesitant to intervene on disputes between Congress and the presidency. Ironically, Congress itself is largely to blame for this predicament.
Article 1 of the Constitution reads, “All legislative powers herein granted shall be vested in a Congress of the United States,” with Article 2, Section 3 stating that the president’s job is to “take care that the laws be faithfully executed.” However, presidents, from George Washington on down to Barack Obama, have issued executive orders to guide the enforcement of laws and to manage the federal government itself. The debate about presidential overreach hinges upon whether or not specific executive orders are “faithful” to congressional intent.
Over the years, instead of jealously guarding its constitutional right to legislative powers, Congress has delegated much of its authority to the executive branch, either by explicitly granting rulemaking authority to federal bureaucrats or by passing poorly constructed legislation that is open to broad interpretation. The 2,700-page Affordable Care Act, which delegates most of the regulatory and rule-making responsibility for the law to the secretary of Health and Human Services and is unclear on issues such as mandatory contraception coverage, is just such a monstrosity. Congress essentially outsourced its legislative authority for more than 20 percent of our economy to the president and legions of unelected, unaccountable bureaucrats. Barring a complete repeal, which would require a veto-proof majority with this president, Congress will not get that authority back.
While congressional Republicans might argue that they had no hand in passing Obamacare, they have certainly participated in sweeping grants of legislative power to the executive branch over the years. The Patriot Act and TARP are both catastrophic examples of their complicity in the erosion of congressional power.
If congressional leaders are intent upon reining in the executive branch, they must start by drafting, reading, debating and thoroughly vetting every piece of legislation before they vote on it. Over time, equipped with clearly worded, tightly focused bills, Congress can, slowly but surely, reassert its legislative authority. It must make a concerted effort to do so. Our form of government depends on effective checks and balances.
Dan Liljenquist is a former state senator and U.S. Senate candidate.