A Superfluous Congress

There is not the slightest constitutional pretext for deferring enforcement of unworkable provisions of the Affordable Care Act. By all accounts it is reasonable policy to do so. But the constitutional precedent is profoundly troubling. Congress’ craven capitulation to it is even more so.

No one has noticed in the present case because Congress and the President seem generally to agree on this course. Republicans do not want the law enforced at all, and most Democrats appear to concur in President Obama’s conclusion that more time is needed before certain parts of it should be enforced.

Ceding all these points, the question remains: On what conceivable constitutional ground can a president merely announce, by fiat, that provisions of a duly enacted statute will be deferred—not on the pretext of a constitutional dispute, on which basis presidents have been known to decline to enforce laws, but simply for reasons of policy?

That President Obama signed the law in question is not the point; in fact, it obscures it. The danger inheres in a future conflict between Congress and the President, as, for example, when Congress attempted—lamely—to restrain the Bush Administration from torturing suspected terrorists. Suppose, rather than issuing a signing statement announcing his intent not to follow the law for constitutional reasons—in the face of which, by the way, Congress was also pathetically compliant—Bush had instead acknowledged it but deferred enforcement because it was “unworkable”?

Or take a future example: Congress—this is pure fantasy, but such is the blogger’s prerogative—by statute orders the closure of the prison facility at Guantanamo Bay. The president signs rather than vetoes the bill but subsequently announces it is impractical and that he or she will consequently follow it when he or she believes it prudent to do so.

That arrangement would render Congress superfluous, a merely recommendatory body—which is, not incidentally, the posture to which the legislature has allowed itself to be reduced. With the exception of the occasional Rand Paul, Congress has been silent. Republicans have seized on the delays to call for repeal of the entire law—evidently oblivious to the thumb being stuck, meanwhile, in their constitutional eyes.

Congress’ failure to use the constitutional tools at its disposal to protect its institutional interests marks the single greatest departure from the constitutional regime delineated in The Federalist. Presidents share this blame, but legislators shoulder it. They have been parties to their own defenestration, substituting their personal interest in re-election—or, at the most charitable, in ideological outcomes—for the institutional self-defense in which Publius assumes they will engage. No president acts this way. If Congress presumed, for example, to tell the president whom to nominate to the Cabinet or where to send the Third Fleet, he would not go along with the pretended authority simply because he agreed with how it was exercised in that case.

There are myriad reasons for the difference, the foremost being that the interests of the man and the constitutional rights of the place are, in the case of the president, one and the same, whereas they are—for 535 members of Congress—diffuse. But for Congress to be this flaccidly compliant in the face of this flagrant a challenge betrays the oath its members take, which is not to good policy but rather to the Constitution.

That the Constitution is at stake is evident in the fact that this incident will be remembered approvingly in a future case of conflict between the executive and legislature. The precedent it creates places the executive totally beyond the reach of law. This is the predictable inward turn of the unitary executive theory. Those who thought it could be constrained to the war on terror were either historically deluded or willfully ignorant of what Publius calls the “encroaching nature” of power.

Woodrow Wilson would detect an upside: streamlining government by simply depositing all powers in the president’s hands. But if we are going to render Congress superfluous, we might as well save something in the bargain. The institutional operating costs of Capitol Hill last year approached $5 billion. Those savings would be a small down payment on the deficit. Of course, the constitutional costs—concentration of all powers in a single hand, “the very definition,” Publius teaches, “of tyranny”—would be far higher. But nobody seems to be counting those.

Reader Discussion

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on August 15, 2013 at 15:02:23 pm

Great piece!
And this is not all the Enlightened One has done. See non-enforcement of immigration regulations (hid behind administrative rule making / discretion) and now raising cell phone fees / taxes for another of his pet causes. Knucklehead that I am for thinking that was the role of the congress.
And the GOP will continue to provide cover for him.

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on August 17, 2013 at 17:51:17 pm

This looks more like the predictable result of the delegation of legislative authority to the President than it does to the idea of the unitary executive.
Recall Jefferson's commens that, ""The transaction of business with foreign nations is Executive altogether." and "It belongs to then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly."

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Richard S
on August 17, 2013 at 19:05:23 pm

Congress began outsourcing its authority to the executive branch a very long time ago with the creation and expansion of the bureaucratic/administrative state. All the 535 elected representative do is provide "oversight" to the 2.5 million or so permanent, unelected, bureaucrats in the executive branch (excluding military).

So we're paying the bureaucrats to write new regulations in their fiefdoms. I read somewhere that they pump out somewhere around 3000 new regs each year. Then the Congress thinks that its job is to create brand new bureaucracies every time it passes something with the name "comprehensive" in it. So we've got bureaucrats writing regulations; Congress passing laws to create new bureaucracies to write new regulations; and the President deciding which are politically expedient for him to enforce and which are politically expedient for him to ignore - and occasionally unilaterally amending them whenever he wants.

I don't know what kind of system this is, but it is not a Constitutional Republic in which the citizenry is able to hold the rule makers accountable.

As far as I can tell, the only thing Congress does is pass new laws to create new bureaucracies for the executive branch to administer (if the executive so chooses), and occasionally Congress will decide to fight with each other about how to fix prior government screw-ups. For example: the immigration system is "broken" and in need of reform because government failed to enforce existing immigration laws and allowed several million people to unlawfully invade the country; the entitlement programs are "broken" and in need of reform because government did not match up the benefits and revenues and fixing the problem will mean raising taxes or reducing benefits which may anger the constituents who might vote them out of office; the tax system is "broken" and in need of reform because to buy votes Congress paid off special interests with tax credits, subsides, etc. and now the entire tax system needs reformed. Again.

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Image of Scott
on August 17, 2013 at 21:44:46 pm

USA is too big. Needs to be broken up into smaller pieces like what happened to the USSR. I'm thinking maybe nine separate "countries". North Carolina would be in the country called Dixie.

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russ in nc
on August 18, 2013 at 08:10:44 am

Nicely said, but you seem to studiously avoid specific responsibility on the part of Democrats. It's disingenuous to claim that Republicans are complicit. The constitutional lever given to Congress is impeachment - are there any other options? Republicans have wisely stayed away from that word. In the current environment, it would be suicidal for them to push for impeachment.

It boils down to Harry Reid and the Senate Democrats who for their craven political purposes, are happy to let the executive become a tyrant. What can the Republicans do? They don't have the votes.

And the news media - where are they? Crawling over each other to get invited to Martha's Vineyard, I guess.

Presidents respond to public outrage - witness Bush backing down on waterboarding. Where is the academic community and the media when it comes to defending the Constitution?

"Who cares about that stupid old racist constitution - quit bothering me - I'm watching The View."

Democracy in action minus the Constitution = Egypt.

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Image of George
on August 18, 2013 at 19:48:02 pm

[...] It appears at some point that Congress was infected with some powerful STD’s from all of that action that caused their minds, souls, and testicles to rot and decay until there’s nothing left but $2,000 Gucci-suited shells of power-hungry royalty…both Dems and Repubs included.  Read this excellent piece entitled “A Superfluous Congress” from Greg Weiner, a teacher ... [...]

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Image of Dear Congress, why did YOU opt out of Obamacare? | Vagabond's Rose
Dear Congress, why did YOU opt out of Obamacare? | Vagabond's Rose

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