Congressional End Run

Posted by By at 6 July, at 18 : 11 PM Print

During the great debate over the Constitution – a seminal moment in human history – the Framers’ fears and anxieties about government were laid bare, including a near mortal dread over the accumulation of too much power in either the Executive or Judicial branches.  It was “self evident” to these former rebels and outlaws that too much power in too few hands leads to a loss of liberty – a tyranny of the minority.

Accordingly, when the Constitution was drafted, the assumption was that the legislature would be the driving force in the Republic (the idea that these were three equal branches came later as the two other branches grabbed more power).  As the closest to the people, the belief was that the legislature would be a philosophical rock tumbler of ideas, regional bias, and political interest – and that the resulting policies from such a body would be a smoother middle way having come as a product of compromise.

In the Framers’ mind, the executive (in the form of the King) had far too much power even limited by Parliament.  It was this type power – the power of the executive to deprive the people of their liberty or property without the consent of the governed – that the Framers sought to deny the new presidency.

As their words and actions make clear, the Framers viewed almost any power in the hands of the executive, absent congressional assent, as a threat.  It is for this reason that the President’s power is limited by congressional consent – through the purse – in almost every regard (with a few notable exceptions like pardons).  Even the President’s lack of assent in congressional action is limited by the ability of Congress to override a veto.

The Framers did this because they feared too much power in the hands of the few.  It was – and is – a fear rooted in the fertile soil of human experience.

In that context, this president’s willingness to undermine the legislative branch stands as a rejection of the founding principles of this nation.  Consider the following:

After losing a vote on Cap and Trade, the president – through the EPA – sought to achieve the same effect through executive fiat.  By claiming jurisdiction to regulate CO2, the EPA appears to want to enforce the “cap” part of cap and trade.  Never mind that this was specifically rejected by the Congress, it is also a prescription for an even worse recession.

More absurd than this was the president’s formulation on the Libya issue.  The legal and mental gymnastics required to support his position in effect condemn his aim – that is, to neither condemn the war powers act as unconstitutional nor to risk a losing vote on military action authorization from a suddenly dovish congress.  So he ignores the law – granted, not for any sinister reason, but with a no less ill result; after all, we now have the precedent that, when faced with a likely losing vote, the president can simply interpret the War Powers in a manner that suits his aims.  Machiavelli would be proud.

I can list many more, from using recess appointments to stack the National Labor and Mediation Boards, to granting waivers to his own healthcare law without any consistent standard, to refusing to defend the Defense of Marriage Act rather than seeking to repeal it.  These actions – and many more – demonstrate the president is willing to achieve his ends through whatever avenue he can find.

And yet none of that is anywhere near as audacious – and potentially damaging – than the most recent trial balloon floated. In case you missed it, the White House and leading congressional Democrats are starting to whisper that the president does not need congress to raise the debt limit.

Consider that again – the president is contemplating “re-interpreting” the 14th Amendment in a way that allows him to raise the debt ceiling without congressional approval.  He would be the first president to even attempt such a thing.

For the president and the Democrats, this would be a dream come true – more money now and no need to cut a dime to get it.  It also means that – if successful – the precedent is set and our government “of the people” is weaker as a result.

This is a huge land grab, make no mistake – one that then-Senator Obama (who voted against raising the debt ceiling) would have decried from the mountaintops.  It will take away legislative leverage – leverage that the Framers demanded the legislature have. After all, the power of the purse has always been Congress’ greatest power.

Now, because he and his party do not want to face the reality of split power and the need to cut a deal that includes real reforms, this president is willing to permanently damage our institutions for short term political expediency.

It also takes a long step toward consolidating more power within the ever-expanding federal executive leviathan.

The Framers feared this.  After thirty months under this president, I understand why.

Photo by Nancy Pelosi

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This post was written by:
- who has written 77 posts for Rock The Capital
Scott Paterno is an accomplished policy analyst and political consultant based in Hershey, PA. Mr. Paterno, never one to sit still, has practiced law, run for a house seat, and worked as lobbyist in Harrisburg and Washington. Paterno is Vice Chairman of the Sustainable Energy Fund and is currently pursuing a master’s degree in Political Science. He is happily married with three children. - Email scottp

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