One analysis of the 2016 campaign, accounting for Donald Trump’s and Bernie Sanders’ popularity, is that voters feel powerless and consequently are angry. They detest Washington and want to smash up the status quo, which they feel works against them and is run by politicians who ignore them.
This explanation has much to recommend it, not least that there are many ways in which voters have little say in their governance.
The unelected Federal Reserve Bank, for example, is in several respects more powerful than Congress (which created it), as the Wall Street Journal noted Monday. Tellingly, interest groups lobby the Fed as though it were a legislature.
The problem of power draining away from Capitol Hill is a wide one. Congress has given free rein to the executive branch but should not have. And administrations are only too eager to take a mile whenever given an inch.
This is true of the most important decisions, such as who has the power to wage war. We learned again during President Obama’s administration that the answer is that the president can take the country to war all by himself.
There is a multitude of decisions, each less momentous than the decision to go to war, which, taken together, nevertheless erode the proper authority of the people’s representatives, and thus undermine our democracy.
It was bureaucrats who imposed the birth control mandate on insurers, businesses and nonprofit organizations such as the Little Sisters of the Poor. The Obamacare law passed by Congress required no such thing. Another unelected body, the Supreme Court, is going to decide this matter, so again, it is out of Congress’s hands.
Similarly, it is regulators, not the words of the Obamacare statute, that are forcing insurance companies to cover sex-change operations, and obliging doctors to do the surgery, even on children, whether or not they think it medically advisable. It is obvious that Congress would not have passed such obligation if it had ever even considered it, which it did not.
This is because Congress has passed a law so vaguely worded that executive agencies could drive a tank through the loopholes. Bureaucrats are free to extend the ambit of new (and old) laws into areas for which they could not hope to secure democratic support. Courts usually do not check regulators’ power because precedent recommends deferring to their interpretations of law except in egregious cases.
There is no one answer to reclaiming congressional prerogatives. It will take many steps and the political will of legislators collectively to claw back what they have let go, and take difficult decisions themselves, rather than devolving them to officials.
But every journey begins with the first steps, so there are some suggestions for what those might be. Obama, who once warned of the threat posed by an overmighty executive, could in theory put his money where his mouth was and use his remaining time in office working in bipartisan fashion with Capitol Hill.
He could support the suggestion of the late Milton Friedman, Nobel laureate in economics, who recommended that interest rates be adjusted according to a set formula rather than at the discretion of central bankers. Some members of Congress have proposed moving in this direction by limiting the Fed’s mandate to the control of inflation. Their legislation is becalmed, but Obama would put the wind at its back by declaring his support for it.
More importantly, Congress could limit excessive regulation. A year ago, the House passed the REINS Act, a much-strengthened version of the 20-year-old Congressional Review Act. REINS would require congressional approval of any executive branch rules or regulations with an annual economic impact of $100 million or more. Obama and the Democrats could back this move, restore power to the people.
The system set forth by REINS is ideal because it gives the people’s representatives a final say over how the laws they pass are executed. REINS would not, however, interfere unduly in decisions best left to experts. (For example, agency officials know better than lawmakers the precise alloy composition required to make safe automobile components.)
A third, less orthodox recommendation is for the House and Senate to give the party opposite the president (whether in the minority or the majority) the full power of congressional oversight. This is the way some of the world’s other democracies operate already. The last two presidents expanded executive power too easily because Congress, when controlled by their own party, allowed them to do so. Lawmakers have failed to do their oversight duty when the president is from their own party.
Congress owes it to its constituents to guard and fully exercise the powers it is granted under the Constitution, and not to allow their erosion by other branches of government. It is not an act of kindness to give slack to a president and his agenda, but rather an act of laziness that weakens the ability of Americans to govern themselves.
