Congress Has Lost Its Authority
Members of Congress are called "lawmakers." But in recent years, that's become more ceremonial than official.
These days most law is made by bureaucrats, not passed directly by our elected representatives. "Congress passes laws delegating its legislative power to these agencies and departments, and they in turn develop the laws with which we must comply," scholar Joe Postell writes.
This has led to the creation of a vast administrative state, an unelected fourth branch of government. Emblematic of this trend are the Affordable Care Act and Dodd-Frank -- laws that Congress passed, but that in reality are being written after the fact by federal agencies.
In Obamacare, "the word 'secretary' appears nearly 3,000 times in the 2,700 page bill, most frequently referring to regulatory implementation requirements that will have to be undertaken by the HHS Secretary (currently Kathleen Sebelius) and appointed or career staff," health analyst Tevi Troy wrote in 2012. At that time, Health and Human Services had already written 12,000 pages of regulations related to the law. It has, of course, added many more in the years since.
Dodd-Frank has followed the same path. The law, which was presented as an effort to address the problems that led to the 2008 financial crisis, was passed in 2010. But instead of creating law in itself, Dodd-Frank instructed unelected bureaucrats to make hundreds of rules that would then have the force of law. The law firm DavisPolk tracks the law's implementation each month. As of the February update, only about half of the 398 required rulemakings had been finalized. That means a huge chunk of the law is, effectively, not yet written.
The law's Consumer Financial Protection Bureau has already been created, though, and it's hard at work issuing regulations. It's an independent bureau within the Federal Reserve System, which is itself an independent federal agency and already had a Division of Consumer and Community Affairs to serve as a watchdog for consumers.
Lawmakers seem all too eager to hand over their power. Rep. Sheila Jackson Lee (D., Texas) recently explained that her "number one agenda" will be to write and "give President Obama a number of executive orders that he can sign."
House Minority Leader Nancy Pelosi is on board, too. "When you have exhausted the legislative remedies," she told reporters, "then the question is why don't you do something about it where you have the power to do it." Senate Majority Leader Harry Reid also speaks fondly of executive orders when legislating proves difficult.
There's nothing wrong with executive orders. Every president except William Henry Harrison (who died after a month in office) has used them. However, they're to be used by the executive branch, not the legislative.
And while Pelosi may be right that her party can run out of "legislative remedies," Congress cannot -- it can always pass a law. In a democratic republic where lawmakers are selected by the people, that's what matters.
Members of Congress must reassert their authority to make law. For our system of divided powers to work we need a legislature that jealously guards its authority, and cracks down on the unelected, unconstitutional powers of the administrative state.
Rich Tucker is a senior writer in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.