Article I of the Constitution puts lawmaking power—indeed, most federal powers not related to foreign policy—in the hands of Congress. But recent decades (arguably centuries) have seen a slow but steady shift of power to what is now fairly called the “imperial presidency.”
“The president has recently claimed the power to unilaterally rewrite health care law, tax law, immigration law and welfare law,” writes Pascal-Emmanuel Gobry, my colleague at The Week. “Not to mention the whole business about having the right to assassinate whomever he wants wherever he wants.”
Gobry highlights one particularly dangerous legislative phrase that got us to this point: “the secretary shall determine.” “This line, which you’ll find in so many laws, ends up giving the executive branch of government huge control over policy,” he explains, which in turn empowers unelected executive branch bureaucrats—the permanent government that keeps doing what it wants to do regardless of who’s in office.
This “encourages cronyism,” Gobry adds, “because it’s easier for connected insiders to bend the rules to their liking when those rules are made by unelected and invisible bureaucrats and appointees, rather than by elected, accountable leaders.”
If Congress wants to reclaim its rightful authority, Gobry says, it should get on board with a new effort spearheaded by Senator Mike Lee (R-Utah), the Article I Project.
At National Review this week, Lee explained that his project has four primary goals (emphasis added):
First, Congress must reclaim its power of the federal purse. Our formal budget process, which dates to 1974, has fallen apart, and we must restructure it for a post-earmark world. We need to bring entitlement programs back onto the actual budget and bring self-funding federal agencies back under annual appropriation.
Second, we need to reform legislative “cliffs” that loom behind expiring legislation—at the end of the fiscal year and when the federal debt nears its statutory limit—to realign the incentives of the American people and their government.
Third, Congress must take back control of actual federal lawmaking. Today, the vast majority of federal laws are unilaterally imposed by executive-branch agencies. The bureaucrats in these agencies then serve as police, prosecutors, and courts in the ensuing cases. All major regulations should be affirmatively prioritized and approved by a vote of Congress.
Finally, we must clarify the law governing executive discretion, which right now allows presidents and federal bureaucrats to ignore or rewrite federal statutes, so long as they have a clever enough reason.
Were these reforms successfully achieved, Lee concludes, it would “put Congress back in charge of federal lawmaking and put the American people back in charge of Washington—just as the Founders intended.”
Currently Lee’s plan only has public backing from other Republicans, but as Gobry notes, a GOP presidential win this November might make Democrats recover all those concerns they had about executive overreach circa 2001-2009.
But no matter who next occupies the White House, I share Gobry’s hope that this “effort succeeds and people of good will interested in good, constitutional government support him.” The imperial presidency is bigger than any one president, and it’s high time Congress did something about it.