The ‘Living’ Law

by Charles C. W. Cooke
Congress is handing its indispensable constitutional role to the executive branch.

In his dazzling revolutionary polemic, Common Sense, Thomas Paine explained in no uncertain terms that

in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.

John Adams put this a little more pithily a few years later, distilling into the new constitution of Massachusetts an ancient English value: This state, Adams wrote, would be “a government of laws and not of men.”

Adams’s axiom has become American scripture; an impulsively recalled maxim of liberty to which all men who feel threatened by government power return at will. Yet recent trends call into question whether the two things remain mutually exclusive. In Common Sense, Paine sets the king and the law as being diametrically opposed. But what if, instead of holding him back, the law is happy to give the king carte blanche? And what if a Congress that we instinctively believe to be jealous of its territory is in fact content to cede it to the executive branch, thereby producing not traditional laws but enabling acts?

It is a small jump from regarding the Constitution as “living” — as swathes of the will-to-power Left unashamedly do — to regarding legislation as “living,” too. This is a jump that many appear to have made. One of the more insidious developments of this presidential era has been the replacement of prescriptive, detailed, and fixed domestic law with bloated and open-ended legislation that is punctuated ad nauseam with instances of “the secretary shall.” As my colleague Andrew Stiles has noticed, the Senate’s desired immigration bill fits this new model of “living law” perfectly. He writes:

The 844-page bill contains 129 instances of what the DHS secretary “shall” do to implement its myriad provisions, 102 mentions of what she “may” do, and 35 cases in which implementation will be based on what the secretary “determines.” On five occasions, the bill affirms the DHS secretary’s “unreviewable discretion” to waive or alter certain provisions as she sees fit.

This should come as no great surprise to anyone. Obamacare, which makes the Senate’s immigration bill look like an exercise in legislative restraint, contains over 2,500 references to the secretary’s discretion, 700 cases in which the secretary “shall,” 200 instances in which the secretary “may,” and 139 cases in which the secretary “determines.” Its twin, Dodd-Frank, which effectively allows an unelected Consumer Financial Protection Bureau to police the personal-finance sector, is little different, aggregating the power of the three branches into one, stripping Congress of its traditional capacity to set an agency’s budget, and severely limiting the courts’ opportunity to review the CFPB’s legal interpretations. This is law, Jim — but not as we know it.

To ask for a concise explanation of what these new sorts of laws do would be futile, because the only meaningful answer is that they give the president the scope to run certain parts of the economy the way he wants. And what he wants is what Woodrow Wilson wanted in The Study of Administration: a means by which to “open for the public a bureau of skilled, economical administration” that is filled with the “hundreds who are wise” and that thwarts the “selfish, ignorant, timid, stubborn, or foolish.” Government of the expert, by the powerful, and for the unworthy, in other words.

This, it should not need saying, stands in diametric opposition to the underlying principle — the “all-important English trait,” Orwell called it — that made the Anglosphere exceptional in the first place: that the law is regarded as “something above the state and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.” “The totalitarian idea that there is no such thing as law, there is only power, has never taken root,” Orwell claimed of his native England. It has not quite taken root in America, either. But even here, the law, which should be firmly and beautifully dead, is in danger of taking on a life of its own. If it is allowed to do so, Americans will invite in caprice, the half-brother of whim, which, as Christopher Hitchens astutely observed, is the “essence of tyranny.”

Students of history will know that Americans have flirted with such expansive measures before, with consequences that were catastrophic for good and limited government. In the modern era, the worst such example is the Gulf of Tonkin Resolution (1964), which, by virtue of its wildly ambiguous language and a remarkable fail-safe provision that allowed the president to “take all necessary measures” in Southeast Asia, effectively gave President Lyndon Johnson license to launch and escalate the Vietnam War without the need for Congress’s warrant. The eventual outcry, joined with general disillusionment with the imperial presidency, led not only to repeal of the resolution itself but also to the War Powers Act (1973), which, for some time at least, went some way toward restoring congressional constraints on the executive branch. Do we need a Domestic Powers Act to complement it?

According to all the president’s men, the answer is no. Instead, they insist, we should be happy about our fickle new arrangement. “If you look at the polling” on Obamacare, David Axelrod explained on MSNBC’s Morning Joe last week, “the majority of the people say let’s move forward and fix it along the way — and that’s exactly what the president will do.” This, to say the least, is a rather novel theory of the American political system. Whether the “majority of the people say let’s move forward” on a particular project or not is rarely the salient question. The United States is a republic. It is not a monarchy, it is not a majoritarian democracy, and it is certainly not a direct democracy. Its highest value, in fact, is “nomocratic” — that is to say, that the rule of law and the overarching constitutional system trump pretty much everything else.

In that they carry Congress’s blessing, our living laws are distinct from rule without Congress, a rule for which Obama is becoming increasingly famous. Nevertheless, both living legislation and executive rule rely for sustenance on the same appeals to urgency and necessity that our 44th president has perfected. Michael Oakeshott shrewdly observed in On History that the nomocrats will always be at a disadvantage because, while the rule of law “remains the most civilized and least burdensome conception of a state yet to be devised,” it nevertheless “bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault.” Suffice to say: That the rule of law can distribute no loaves or fishes, in an age in which distributing loaves and fishes is regarded as the highest of all government functions, is a desperate problem for it.

Moved as we now are by our fetishization of democracy, claims of tyranny in America tend to be curtailed by the sight of elections. It is the German Enabling Act of 1933 that we mostly fear — a dramatic measure that would allow a man to rule in perpetuity as a king. But we overlook the real danger posed by other, duly passed, acts of Congress. America has never worked on the basis that the executive branch may do as it wishes during its four-year term with the understanding that, if the people don’t like it, they may remove the president when his time is up. Even presidents who win virtually every state in the union are required to follow the law, and they are required to remain in their designated sphere, too. Perhaps we are looking in the wrong place for our despotism?

In Federalist 47, Madison forthrightly characterized as “tyranny” the investment of great power in one branch of government. In Federalist 48, he built on this idea, warning that “powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.” America’s Constitution operates on the presumption that the branches of government will inevitably compete with one another for influence. Thus do “parchment barriers” prevent the encroachment of one branch over another, and the deleterious “accumulation of all powers, legislative, executive, and judiciary, in the same hands.”

But for the essential balance of power to be upset, one needs neither a tyrant nor a coup; one needs only a compliant or underconfident branch of government. This we have seen since Obama’s inauguration. In the past four years, Congress has happily handed over to the executive branch regulation of the environment, of the financial sector, and of the health-care market. It is currently considering doing the same thing with immigration.

George Washington’s parting warning about the “necessity of reciprocal checks of political power, by dividing and distributing it into different depositories and constituting each the guardian . . . against invasions by the others” has never looked more prescient. The legislature, which has for so long now deferred to the president, must insist that, if Americans are to be governed by law, that law must be precise, and it must be dead. Down the “living law” road lies caprice — and caprice, remember, leads to tyranny.

— Charles C. W. Cooke is a staff writer at National Review.