Senator Ben Sasse of Nebraska, a rookie who ranks 99th in seniority, gave his maiden speech on the Senate floor in November. Normally, senators use such speeches to discuss why this or that legislation is needed. Sasse, a former college president and a historian by training (Yale Ph.D.) who has taught public policy (at the University of Texas), didn’t do that. Instead, he addressed the institutional decline of Congress.
The speech was well received in the Senate, and the news coverage was generally positive. Oddly, however, the media failed to observe that Sasse promised a series of floor speeches on the growth of the administrative state and “executive branch legislating.”
The importance of this topic is evident. The administrative state is the collective name given to executive agencies (think Federal Communications Commission, established in 1934, and the Consumer Financial Protection Bureau, created in 2010) to which Congress “delegates” power. The agencies write regulations—which they administer—that have the same force and effect as federal statutes.
Writing in National Affairs, Charles J. Cooper, constitutional lawyer and former head (under President Reagan) of the Justice Department’s Office of Legal Counsel, says that the domain of the administrative state is vast, ranging “from the most trivial to the most significant matters of public and private life. . . . Its legions regulate our health care and our children’s dolls, our national banking system and our neighborhood stop signs.” At last count, the administrative state numbered more than 450 agencies and 2.7 million employees. “All told,” writes Cooper, “the Code of Federal Regulations contained 175,496 pages of regulations spread out over 235 volumes as of 2013.”
Many agencies exercise all three federal powers—legislative, executive, and judicial. Of particular concern to Sasse as a senator is agency exercise of delegated legislative powers—what he calls “executive branch legislating.” For Sasse, the president and his aides also engage in that when they use various means—executive order, memorandum, and waiver, for example—to amend a law or even to make a new one. These acts of “executive unilateralism” are so-called because they don’t involve Congress. Thus, in perhaps the best-known example during his administration, President Obama effectively enacted changes to immigration law that Congress had resisted passing.
Of course, for a bill to become a law the old-fashioned (i.e., constitutional) way, it must be passed by both houses of Congress and presented to the president for his signature. Suffice it to say, “executive branch legislating”—whether by agency rulemaking or executive unilateralism—doesn’t meet those requirements.
Sasse kicked off his series eight days before Christmas. “The problem of a weak Congress and the growth of an unchecked executive should be bad news to all of us,” he told his fellow senators. “But more importantly than us, this should be bad news for every constituent who . . . votes for us under the impression that the Congress actually makes decisions and doesn’t just offer whiny suggestions.”
In an interview, I asked Sasse what led to the series of speeches. “I think the country has a lot of big problems,” he said, citing (among other things) the lack of a national security strategy for the cyber age, entitlement budgets that “can weather the next decade-plus,” and a human capital strategy for an era of employment disruption. But, he said, “the bigger problem is that we don’t have a shared national understanding of why we have local government. I’m a committed Tocquevillean. I believe in localism. Most of the meaningful things in life”—such as raising children and building small businesses—”happen at the local level. . . . Limited government is not an end in itself,” but “a means” to the best things in life. “I think we’ve lost any sense of that.”
Sasse’s speeches may fairly be understood as an effort to explain how we lost that “shared national understanding.” In the interview, he said that the federal government has been “crowding” out state and local governments and that the president and the administrative state are doing most of the crowding out—often through executive branch legislating, in rules the agencies write and in actions the executive unilaterally takes. The result, Sasse said, is weakened local governments as well as the nongovernmental institutions essential for civil society.
Sasse would seem to regard the federal government as a continuing violation of the separation of powers—the structural principle by which the Framers divided powers among three departments of government. They aimed to prevent one department’s usurpation of another’s power, and thus to help protect liberty. Note here that Sasse’s provocative term, “executive branch legislating,” names just such a usurpation. After all, the constitution vests the legislative powers in Congress, not in the executive.
With his speeches, Sasse said he aims “to do some history”—to describe how presidents of both parties have contributed to executive branch legislating, and how, too, members of both parties in Congress have often not wanted to lead “on hard issues and take hard votes” but “to sit back and let successive presidents gobble up more authority.”
Sasse said that he “will not be a Republican senator criticizing the current administration because it is Democratic.” He intends, instead, to advocate nonpartisan “identity commitments.” “It cannot be Rs against Ds. Democrats need to speak up when a Democratic president exceeds his or her powers. I plan to speak up when a Republican president exceeds his.” Sasse is calling for something seldom extolled in Washington—an identity commitment that is irreducibly constitutional.
And he is calling for a due regard for the facts. Thus, in the speech shortly before Christmas, Sasse said: “Today many in my party argue that no president has ever even contemplated doing what President Obama regularly does. This is actually not true. . . . His theories are not at all new.” Executive unilateralism dates back to the Progressive era’s “disdain for the limits of the Constitution,” and is especially evident “in the self-conscious executive expansionism of Teddy Roosevelt, the Republican, and Woodrow Wilson, the Democrat.” Not incidentally, after the holidays Sasse plans to give speeches exploring those presidents’ “attempts to marginalize Congress and to intentionally ignore the Congress.”
Previewing that speech, Sasse told me that he “hears regularly from both Republican and Democratic senators and senior White House officials about how senators come to them and ask them to do things” that are properly within the authority of Congress but which, if voted on, might hurt their chances of reelection. “It makes sense if your only calculus is reelection,” said Sasse. “Sadly, the biggest thing that motivates members is their reelection.”
Sasse speaks of “the unbalanced nature of executive branch and legislative branch relations.” That is another way of saying the legislative and executive powers are not properly—that is, constitutionally—separated. He would like to see the powers rebalanced in a more constitutional manner. For that to happen, Sasse said, “a civic reawakening of constitutionalism” will be necessary—a point on which it will be hard to argue.
Terry Eastland is an executive editor at The Weekly Standard.
