Congress is handing its indispensable
constitutional role to the executive branch.
In
his dazzling revolutionary polemic, Common
Sense, Thomas Paine explained in no uncertain terms that
in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.
John Adams put this a little more pithily
a few years later, distilling into the new constitution of Massachusetts an
ancient English value: This state, Adams wrote, would be “a government of laws
and not of men.”
Adams’s axiom has become American
scripture; an impulsively recalled maxim of liberty to which all men who feel
threatened by government power return at will. Yet recent trends call into
question whether the two things remain mutually exclusive. In Common
Sense, Paine sets the king and the law as being diametrically
opposed.
But what if, instead of holding him back,
the law is happy to give the king carte blanche? And what if a Congress that we
instinctively believe to be jealous of its territory is in fact content to cede
it to the executive branch, thereby producing not traditional laws but enabling
acts?
It is a small jump from regarding the
Constitution as “living” — as swathes of the will-to-power Left unashamedly do —
to regarding legislation as
“living,” too. This is a jump that many appear to have made. One of the more
insidious developments of this presidential era has been the replacement of
prescriptive, detailed, and fixed domestic law with bloated and open-ended
legislation that is punctuated ad nauseam with instances of “the secretary
shall.” As my colleague Andrew Stiles has noticed, the Senate’s desired
immigration bill fits this new model of “living law” perfectly. He writes:
The 844-page bill contains 129 instances of what the DHS secretary “shall” do to implement its myriad provisions, 102 mentions of what she “may” do, and 35 cases in which implementation will be based on what the secretary “determines.” On five occasions, the bill affirms the DHS secretary’s “unreviewable discretion” to waive or alter certain provisions as she sees fit.
This should come as no great surprise to
anyone. Obamacare, which makes the Senate’s immigration bill look like an
exercise in legislative restraint, contains over 2,500 references to the
secretary’s discretion, 700 cases in which the secretary “shall,” 200 instances
in which the secretary “may,” and 139 cases in which the secretary “determines.”
Its twin, Dodd-Frank, which effectively allows an unelected Consumer Financial
Protection Bureau to police the personal-finance sector, is little different,
aggregating the power of the three branches into one, stripping Congress of its
traditional capacity to set an agency’s budget and severely limiting the courts’
opportunity to review the CFPB’s legal interpretations. This is law, Jim — but
not as we know it.
To ask for a concise explanation of what these new sorts of laws do would
be futile, because the only meaningful answer is that they give the president
the scope to run certain parts of the economy the way he wants. And what he
wants is what Woodrow Wilson wanted in The Study of Administration : a
means by which to “open for the public a bureau of skilled, economical
administration” that is filled with the “hundreds who are wise” and that thwarts
the “selfish, ignorant, timid, stubborn, or foolish.” Government of the expert,
by the powerful, and for the unworthy, in other words.
This, it should not need saying, stands
in diametric opposition to the underlying principle — the “all-important English
trait,” Orwell called it — that made the Anglosphere exceptional in the first
place: that the law is regarded as “something above the state and above the
individual, something which is cruel and stupid, of course, but at any rate
incorruptible.” “The totalitarian idea that there is no such thing as law, there
is only power, has never taken root,” Orwell claimed of his native England. It
has not quite taken root in America, either. But even here, the law, which
should be firmly and beautifully dead, is in danger of taking on a life of its
own. If it is allowed to do so, Americans will invite in caprice, the
half-brother of whim, which, as Christopher Hitchens astutely observed, is the
“essence of tyranny.”
Students of history will know that Americans have flirted with such
expansive measures before, with consequences that were catastrophic for good and
limited government. In the modern era, the worst such example is the Gulf of
Tonkin Resolution (1964), which, by virtue of its wildly ambiguous language and
a remarkable and fail-safe provision that allowed the president to “take all
necessary measures” in Southeast Asia, effectively gave President Lyndon Johnson
license to launch and escalate the Vietnam War without the need for Congress’s
warrant. The eventual outcry, joined with general disillusionment with the
imperial presidency, led not only to repeal of the resolution itself but also to
the War Powers Act (1973), which, for some time at least, went some way toward
restoring congressional constraints on the executive branch. Do we need a
Domestic Powers Act to complement it?
According to all the president’s men, the answer is no. Instead, they
insist, we should be happy about our fickle new arrangement. “If you look at the
polling” on Obamacare, David Axelrod explained on MSNBC’s Morning Joe last
week, “the majority of the people say let’s move forward and fix it along the
way — and that’s exactly what the president will do.” This, to say the least, is
a rather novel theory of the American political system. Whether the “majority of
the people say let’s move forward” on a particular project or not is rarely the
salient question. The United States is a republic. It is not a monarchy, it is
not a majoritarian democracy, and it is certainly not a direct democracy. Its
highest value, in fact, is “nomocratic” — that is to say, that the rule of law
and the overarching constitutional system trumps pretty much everything
else.
In that they carry Congress’s blessing, our living laws are distinct from
rule without Congress, a rule for which Obama is becoming increasingly famous.
Nevertheless, both living legislation and executive rule rely for sustenance on
the same appeals to urgency and necessity that our 44th president has perfected.
Michael Oakeshott shrewdly observed in On History that the nomocrats
will always be at a disadvantage because, while the rule of law “remains the
most civilized and least burdensome conception of a state yet to be devised,” it
nevertheless “bakes no bread, it is unable to distribute loaves or fishes (it
has none), and it cannot protect itself against external assault.” Suffice to
say: That the rule of law can distribute no loaves or fishes, in an age in which
distributing loaves and fishes is regarded as the highest of all government
functions, is a desperate problem for it.
Moved as we now are by our fetishization of democracy, claims of tyranny in
America tend to be curtailed by the sight of elections. It is the German
Enabling Act of 1933 that we mostly fear — a dramatic measure that would allow a
man to rule in perpetuity as a king. But we overlook the real danger posed by
other, duly passed, acts of Congress. America has never worked on the basis that
the executive branch may do as it wishes during its four-year term with the
understanding that, if the people don’t like it, they may remove the president
when his time is up. Even presidents who win virtually every state in the union
are required to follow the law, and they are required to remain in their
designated sphere, too. Perhaps we are looking in the wrong place for our
despotism?
In Federalist 47, Madison
forthrightly characterized as “tyranny” the investment of great power in one
branch of government. In Federalist 48, he built on this
idea, warning that “powers properly belonging to one of the departments ought
not to be directly and completely administered by either of the other
departments.” America’s constitution operates on the presumption that the
branches of government will inevitably compete with one another for influence.
Thus do “parchment barriers” prevent the encroachment of one branch over
another, and the deleterious “accumulation of all powers, legislative,
executive, and judiciary, in the same hands.”
But for the essential balance of power to
be upset, one needs neither a tyrant nor a coup; one needs only a compliant or
underconfident branch of government. This we have seen since Obama’s
inauguration. In the past four years, Congress has happily handed over to the
executive branch regulation of the environment, of the financial sector, and of
the health-care market. It is currently considering doing the same thing with
immigration.
George Washington’s parting warning about
the “necessity of reciprocal checks of political power, by dividing and
distributing it into different depositories and constituting each the guardian .
. . against invasions by the others” has never looked more prescient. The
legislature, which has for so long now deferred to the president, must insist
that, if Americans are to be governed by law, that law must be precise, and it
must be dead. Down the “living law” road lies caprice — and caprice, remember,
leads to tyranny.
— Charles C. W. Cooke is a staff writer
at National Review.
No comments:
Post a Comment