Why Congress Must Stop Deferring Its Authority to the Executive Branch
Legislative punting has led to an increase in the use of executive power.
Mitchell Nemeth September 18, 2018
In January 2014 President Obama famously said, “We’re not just going to be waiting for legislation to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone.”
Repeatedly, the 44th president argued in favor of unilateral action to craft public policy. Forward to 2018 and President Trump has, in many ways, echoed these sentiments.
However, Congress must reinstate their constitutional authority and hold executive branch agencies accountable.
The growth of the administrative state has prompted debate about the constitutional duties delegated to the branches of government. Congressional oversight authority derives from the implied powers and from various express powers in the U.S. Constitution. However, Congress must reinstate their constitutional authority and hold executive branch agencies accountable. As such, members of Congress should work to rein in excessive government bureaucracy.
Sasse’s Remarks
Nebraska Senator Ben Sasse eloquently discussed this point during the Supreme Court confirmation hearings for Judge Brett Kavanaugh.
“The legislative branch is supposed to be the center of politics. Why isn’t it?” said Sasse, the state’s junior Senator. “For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it.”
Sasse continued:
The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch…..
We write giant pieces of legislation that people haven’t read, filled with terms that are undefined, and we say the secretary or administrator of such-and-such shall promulgate rules that do the rest of our jobs.
The growth of administrative agencies has, in many ways, been a boon to the executive branch’s powers, while siphoning such power and oversight from the legislative branch. Given Congressional Members’ incentive to seek re-election rather than act on challenging issues, perhaps this trend should not surprise us.
Writing in The Wall Street Journal, Sasse suggested,
The real reason [Congress] punts most of its power to executive-agencies is because it is a convenient way to avoid responsibility for controversial and unpopular decision. If your biggest long-term priority is your own re-election, then giving away your power is a pretty good strategy.
Executive Activism
A 2014 Vox article focuses on the executive branch’s increasing activism within the agencies. Article II of the Constitution delegates the duty to the president to “take Care that the Laws be faithfully executed.” There have been extensive legal debates surrounding executive discretion and the flexibility granted by the Founders.
William Howell, a political scientist at the University of Chicago said, “There are some ways here in which Obama has made kind of unique contributions, and really extended his executive authority in ways his predecessors haven’t done.”
These debates will continue, but it is crucial that observers continue to monitor abuses of federal power.
The Deep State
Conservatives have described the administrative state as “The Deep State.” Their thinking is that political actors embed themselves in permanent roles within the agencies and then act on their ideological leanings rather than implement executive orders. The term “Deep State” makes sense if one has a natural skepticism of power; however, this only makes sense if that skepticism endures.
These agencies continue to grow despite public concerns.
Republicans often accuse the Environmental Protection Agency or the Bureau of Consumer Financial Protection (formerly the CFPB) of abusive behavior. Democrats have historically accused the Federal Bureau of Investigation or the Central Intelligence Agency of such behavior. These agencies continue to grow despite public concerns.
A recent New York Times opinion piece, authored anonymously by “a senior official in the Trump administration” solidifies the notion that a massive government bureaucracy is undermining the will of the people. The author acknowledges this aura of a shadow government, referring to it as “the steady state.”
The official continues,
Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th amendment, which would start a complex process for removing the president. So we will do what we can to steer the administration in the right direction until-one way or another-it’s over.
The author finishes the article by acknowledging the quiet resistance within the administration and calls for everyday citizens to rise above politics.
Newfound Interest in the Political Process
Media coverage of President Trump’s administration has prompted a renewed national interest in politics and law. Eric Liu at The Atlantic writes,
Americans today are rushing to make up for decades of atrophy and neglect in civic education and engagement. But as they do so it’s important to remember that citizenship is about more than know-how. It’s also about ‘know-why’—the moral purposes of self-government.
For years, both major political parties have portrayed their opposition as violating standards and norms; yet, each uses similar practices once in power.
In a politically polarized climate, government action itself becomes weaponized.
In a politically polarized climate, government action itself becomes weaponized. Throughout the Obama administration, there were several examples of agencies using their resources to target opponents. Examples include the IRS’ targeting of conservative groups and the Department of Justice targeting journalists. For its part, the Trump administration has instructed its agencies to dismantle specific Obama-era regulations and to target leakers of confidential information.
Congress must agree on reforms to restore trust in the administrative process. The American public must pressure politicians to hold bureaucrats accountable when there are blatant abuses of power.
Failure After Failure
Legislative failures continue to accumulate under the Trump administration. Earlier this year, the Trump Administration began the “zero-tolerance policy” on illegal immigration enforcement through the Department of Justice. This policy was widely condemned as immoral. However, in the case of the “zero-tolerance policy,” elected officials once again failed the American people.
Rather than discuss a truly bipartisan approach to immigration reform, Congressional leaders abrogated responsibility. In the absence of legislative action, the President issued an executive order to end the practice of enforcing the “Flores Consent Decree,” the law governing families in detention centers.
Following President Trump’s reversal of the “zero-tolerance policy,” the White House requested a federal judge to intervene and prevent family separation. Los Angeles-based U.S. District Court Judge Dolly Gee dismissed their request. She wrote,
It is apparent that Defendants’ Application is a cynical attempt…to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered executive action that have led to the current stalemate.
Even the Justice Department spokesperson stressed the notion that this request was in no way an alternative to lawmakers legislating on the matter. “Irrespective of the Court’s decision in Flores, it is incumbent for Congress to finally act to keep families together, end catch-and-release, and create the foundation for an immigration system that serves the national interest,” a DOJ spokesman said.
Congress’ unwillingness to address crucial issues will continue to fuel crises, as the executive branch seeks to remediate problems by extending executive authority.
Moving Forward
The problem will persist unless the American people require more active governance from Congress. Progress will be slow, but there are signs of a growing hunger for Congress’ reinstatement of oversight of the agencies.
“[We] badly need to restore the proper duties and balance of power to our constitutional system,” said Sasse.
He’s right. The American people must call on their elected representatives to preserve, protect, and defend the Constitution of the United States of America.
Mitchell Nemeth holds a Master in the Study of Law from the University of Georgia School of Law. His work has been featured at The Arch Conservative, Merion West, and The Red & Black.
