The United States was founded on the principle of limited government, with power spread out among three branches. Despite this, the country has gone far down the path of allowing great power in the hands of the chief executive. That has occurred in part due to acquisitive administrations, and also because Congress routinely punts tough policy decisions to the White House by giving deference to presidents. This slide away from the intent of the Constitution can be addressed in part by Congress reclaiming its power.
Rep. Warren Davidson (R-Ohio) has introduced House Resolution 330, known as the Article One Restoration Act. Under his resolution, the 16 major committees in the House of Representatives would develop recommendations about how to change federal statutes to cut back on the great discretion the White House can have in carrying out laws.
{mosads}These recommendations would be presented to the House Committee on Oversight and Government Reform. That committee would take the recommendations and put them together in one package for the House to consider. This is a straightforward, transparent, and collaborative way for the chamber to reassert its role in governing.
Over the years, Congress has provided too much discretion to the executive branch to carry out the laws, and have given waiver authority to the president as well. Congress has been legislating scared for years, frightened of opinion polls and constituent dissatisfaction if a law passed by Congress is unpopular.
By giving the executive branch a wide berth in carrying out the laws, members of the House and senators can always claim that an unpopular law was carried out in a manner Congress did not intend. That provides political cover for pusillanimous policymakers. It also entrenches bureaucrats who are not answerable to the people in the way representatives and senators are.
As Matthew Spalding has explained, “Today, when Congress writes legislation, it uses very broad language that turns extensive power over to agencies, which are also given the authority of executing and usually adjudicating violations of their regulations in particular cases. The result is that most of the actual decisions of lawmaking and public policy — decisions previously the constitutional responsibility of elected legislators — are delegated to bureaucrats whose ‘rules’ have the full force and effect of laws.”
The Article One Restoration Act seeks to break this pattern. Committees would have a clear and orderly plan to begin to take back some of their power. Absent legislative barriers, the executive branch will tend toward vigorous use of its power. That is why a reinvigorated Congress is needed, and the resolution is an important way to help make this happen.
One of the most egregious examples of the president acting in light of wide congressional deference is the Antiquities Act and the broad use of it by President Obama. In fact, “In setting aside 550 million acres over the course of eight years, Obama’s use of the Antiquities Act hardly complies with the “smallest area compatible” requirement of the 1906 law.” Congress has let this misuse of presidential power continue instead narrowing the scope of its use legislatively. This is also illustrated in immigration law, where the executive branch has significant leeway, of which President Obama’s executive amnesty is an example.
President George W. Bush also contributed to this erosion of congressional power through his frequent signing statements. Indeed, as Richard Epstein wrote, “In these statements, the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law.” Congress failed to tackle this executive branch excursion into its power. The result is a less democratic and accountable federal government.
By putting checks and balances in place to make the consolidation of power by one branch more difficult, the Founders showed their concern with one branch usurping another. Current experience shows their anxieties about power gravitating to one branch were well-founded. The executive is governing at the expense of the legislative branch. Congress needs to get back in the practice of exerting its constitutional authority. This resolution addresses a bipartisan problem and should have bipartisan support.
Neil Siefring (@NeilSiefring) is vice president of political consulting firm Hilltop Advocacy LLC and a former Republican House staffer.
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