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The ‘Living’ Law
Congress is handing its indispensable constitutional role to the executive branch.


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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.

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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.



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