What if Congress Won't Do Its Job?
The U.S. Constitution is abundantly clear about which branch of the federal government creates our laws: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But what the Constitution makes simple, Congress and the president have turned into a hot mess.
Lately, Congress has assailed the president for essentially writing law on his own. Congress is right: From immigration to environmental regulation and even health care, Barack Obama has used a combination of regulation and executive action to achieve his policy objectives. He even has gone so far as to take military action under the suspect legal authority of a congressional authorization of force from 2001.
Recent presidents have argued, however, that what appears to the public as unilaterally writing law is simply presidents' using the fullest extent of their delegated power to respond to the issues of the day. And they're right in a way, too: Over the course of several decades, Congress has shifted an immense amount of its constitutional law-writing authority to the president and federal agencies. The House and Senate seem perfectly content to complain about the president exceeding his constitutional authority while doing precious little to exercise their own.
The shift has been subtle but significant. Add one agency here. Delegate rulemaking authority there. Bring in some creative legal reasoning. Pretty soon, you have our current regulatory state, where bureaucrats use decades-old congressional authority to draft what amounts to new law.
Delegated congressional authority is substantively different than the executive branch's responsibility to ensure that laws are faithfully executed. Purely administrative action is well within the president's power. Developing new substantive provisions of law, crafting arbitrary exemptions to laws, and ignoring deadlines and details clearly laid out in properly enacted laws are not.
As my colleague Kevin R. Kosar writes in a new paper, the REINS Act, introduced in the current Congress by Rep. Todd Young (R., Ind.) and Sen. Rand Paul (R., Ky.), is just one way that Congress could take back its constitutional responsibility. The legislation would require Congress and the president to affirm major federal rules -- those with an economic impact of $100 million or more -- before such rules could be enforced. Congress would not be forced to write the rules itself; it would simply become accountable for the exercise of its authority.
Unfortunately, Congress is not clamoring to pass the REINS Act. At this point, Americans need to ask themselves: Do senators and congressmen really have any interest in the arduous task of writing law, or would they rather talk about it? We hear so much about executive overreach, but what about legislative underreach? What if the biggest problem is not the president, but rather a complete unwillingness of Congress to develop or be accountable for positive ideas to address the challenges our nation faces?
The issue is not simply with Republicans. When Democrats most recently controlled Congress, they drafted the Affordable Care Act to look like a Mad Libs game, with the Health and Human Services secretary directed to fill in the blanks as she saw fit. Then-speaker Nancy Pelosi's preference -- to pass the bill to find out what was in it -- was a complete abdication of law-writing responsibility.
The REINS Act should have been one of the first bills the Republican Congress put on the president's desk. The measure is not about attacking the president; it is about Congress being serious about its constitutional charge. Instead, we have watched Congress try to undo the president's actions under authority Congress gave away long ago. Congress is not trying to take its authority back from the president. Instead, our senators and congressmen are saying: "We have no plans to use our authority, but we really do not want the president doing anything with it, either."
The Constitution rejects a president that both writes the laws and executes them, but it also expects a Congress willing to do its job. Until Congress demonstrates a willingness, through legislation like the REINS Act, to be accountable for the laws that affect the American people, talk of separation of powers and overreach by the president is little more than empty political rhetoric.
Cameron Smith is southern region director and senior fellow at the R Street Institute, a free-market think tank based in Washington, D.C.