The Corner

For Constitution Day, an Attack on the Constitution

Certain elementary concepts about the US Constitution seem to be poorly grasped in Washington at the moment. At the heart of these is the relative roles of the Legislative and Executive branches. A new report by the Partnership for Public Service puts the blame for “Washington dysfunction” in governance plainly on the shoulders of the Congress. In doing so, it appears to have ignored basic Constitutional principles.

The report goes further than the usual complaints about “hyper-partisanship” and “gridlock,” although it contains its fair share of those. It is based around interviews with “former high-level political appointees and career executives” and some former Congressmen. If it reflects the true attitudes of Executive Branch officials, then nothing less than a root-and-branch clean up of the Federal government will suffice, because the attitudes are deeply disdainful of Congress’ role.

The central complaint is that Congress doesn’t give the Executive the money it needs, and that sequestration was bad for governance. I’ve been reading a lot about the origins of the English Civil War recently, and these complaints reminded me nothing more of the King’s constant demands for a “supply” from Parliament. The question of who controls the purse strings was settled long before America was founded, and it assuredly isn’t the Executive. The report appears to demand that Congress, once it has passed a law, must continue to fund that law in a non-discretionary sense. This of course amounts to a Congress binding its successors, given the probability of a President vetoing repeal. The power of the purse is vitally important in assuring democratic control over expenditures, regardless of the state of delegation from Congress to agencies. It would be ideal if Congress had the power to get rid easily of any law it considers inappropriate, but in the absence of that power (thanks to the veto), defunding is necessary. The Executive may not like it, but Congress has that power.

Sequestration was an appropriate exercise of that power to keep expenditure under some form of control. The report recommends that instead agencies be given targets for cutting costs. That would work in a Parliamentary system – indeed, the British Chancellor has done very well in cutting costs by setting targets for government departments – but is unlikely to work in the US system, where agencies have traditionally had much more independence. It might be an idea for a fiscally-minded President to pursue in partnership with Congress and a strong OMB director, but in the current atmosphere it would just degenerate back into a blame game with Congress once again having to take on the role of bad guy in controlling costs.

Most of the rest of the complaints (too much oversight, not enough appointees confirmed, Congressional ignorance of what the Executive is doing) boil down to one complaint – that the Executive is overworked. That is probably true, thanks to excessive Congressional delegations of authority in recent decades. However, rather than complaining about legitimate constitutional duties that Congress is trying to exercise, the first solution to this is for the Executive to stop making as much work for itself. Take, for instance, the Waters of the United States rule, where the EPA and other agencies have expanded the definition of “navigable waters” of the US to include essentially everywhere rain ever falls in a ten year period. That is bound to lead to friction with the Congress and to a drain (no pun intended) on resources that apparently the Executive can ill afford.

But it’s not just new rules that make to much work for the Executive, it’s the increasing phenomenon of what my colleague Wayne Crews calls “regulatory dark matter” – new rules that people have to follow that aren’t subject to notice and comment periods. This takes the form of Executive Orders, guidance documents, circulars, memos – even blog posts. This “dark energy” of regulation is probably not what Hamilton had in mind when he talked about an energetic Executive. The problem is that this particular energy fuels more work for the federal government – which it then complains to Congress about having to do – but at the same time it stops work in the private sector. 

The system is indeed broken, but let’s not pretend that Congress is the only one at fault here. Our Constitution is at its heart very simple – Congress makes the laws and funds the Executive to execute those laws (and for a few other purposes), reflecting the will of the people about both taxation and expenditure. It takes both sides to realize that that’s how the system should work, and when you have an out-of-control Executive whining about not getting enough money to allow it to be out-of-control, then the blame might just fall somewhere else than the appropriations committees.

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