How the legislative branch can resume its rightful roleOct 27, 2014, Vol. 20, No. 07 • By CHRISTOPHER DEMUTH SR.
What difference will it make if the Republicans win the Senate and hold the House in November? The House can already block Democratic legislation Republicans do not like, and President Obama would still be able to veto Republican legislation he does not like. The Republicans are talking of a positive, problem-solving agenda. That seems to mean passing some constructive bills President Obama could sign, thereby signaling that Washington can get things done, and some others the president would veto, thereby signaling even better days ahead following a GOP presidential victory in 2016.
Such a strategy would hold serious potential. Divided government can be both partisan and productive—as in the second Clinton administration, which brought both an impeachment trial and balanced budgets (and, for the Republicans, the prelude to control of the White House and both chambers of Congress after the 2000 elections).
A Republican Congress facing a Democratic president could, in addition, do something of transcendent importance, something that would furnish a stately frame to its policy initiatives. It could reverse Congress’s institutional decline and begin to restore the elected legislature to its vital position in our constitutional balance of power.
If the Republicans were to attempt this, it would be an edifying spectacle for all concerned. We are familiar with the Celebratory Constitution—Independence Day orators extolling the wisdom of Founders and Framers, Tea Party activists parading in colonial garb. And we are familiar with the Judicial Constitution—aggrieved persons demanding their rights, lawyers exchanging dialectics, judges parsing the Framers’ phrases and discerning their intent. But the path suggested here would be the Members’ Constitution—its sworn officers in Congress assembled, performing its duties, accepting its constraints, and exercising its powers astutely or not—a “living Constitution” indeed. Be forewarned, however, that this path would be as unfamiliar to modern congressional Republicans as to Democrats.
The decline of Congress has been masked in recent years by the Obama administration’s brazen acts of unilateral lawmaking—revising or ignoring key provisions of the Affordable Care Act (Obamacare) and several welfare, immigration, education, energy, and environmental statutes and evading the Constitution’s appointment requirements. Many of these actions have been unconstitutional. A few have been blocked by the courts, and a few have been acceded to with obvious reluctance, but most are immune from legal challenge because no one has standing to sue (which requires tangible individual harm). The House is stepping in with a constitutional lawsuit of its own—casting Congress as a pitiful, helpless giant and innocent bystander to presidential usurpations.
But Congress is not innocent: It has been and continues to be an active partner in the transfer of legislative power to the executive branch. Since the 1970s, it has established dozens of agencies, such as the EPA, with authority to enact sweeping, costly, contentious national policies under vague statutory standards. During the 2008 financial crisis, when the Bush administration rewrote the Troubled Asset Relief Program almost before the ink had dried, legislators complained bitterly but soon acquiesced with supporting legislation. Since then, the Obamacare and Dodd-Frank statutes have set new standards of delegated lawmaking, providing sweeping discretion to a phalanx of agencies, councils, and committees.
Regulation is one thing, but Congress’s most dramatic abdications involve its powers to tax, appropriate, and borrow. These powers, enumerated in Article 1, Sections 8 and 9, are specific, plenary, and exclusive and are the linchpins of Congress’s constitutional position. Yet Congress now appropriates only 30 percent of annual spending—the rest is entitlements and other automatic spending free of annual appropriations, and interest on the federal debt. In most years Congress doesn’t really appropriate the 30 percent either, because of the collapse of its budget procedures and its reliance on continuing resolutions. It did not pass a single regular appropriation for the fiscal year beginning October 1, 2014.
Congress’s propensity to spend much more than it taxes has produced, through continuous annual deficits, a separate kind of delegation—to future citizens and Congresses, who will somehow, someday pay the costs of today’s mounting debt. But in the meantime that propensity has also led Congress to transfer taxing, spending, and borrowing authority to the executive.
12:00 AM, Jul 26, 2014 • By IRWIN M. STELZER
Celebrating a fourth birthday and growing nicely. That’s the story of the Dodd-Frank law, designed to end a “too big to fail” banking system that forced taxpayers to bail out bankers who took not only their own banks but the entire financial system to the verge of collapse, and brought on a record recession. Dodd-Frank, which weighed in at over 2,000 pages at birth, has since put on 14,000 pages of implementing regulations, with more to come.
10:31 AM, Jul 17, 2014 • By IRWIN M. STELZER
Conflate two separate issues and you get one policy error. That is what too many opponents of carbon taxes are doing, getting caught up in the argument about climate change, which really has nothing to do with the case for a carbon tax. That case is that such a tax can make growth-inducing tax reform easier to achieve, and reduce the need for an expansion of the regulatory state, while protecting the competitiveness of our industries.
How long can dinosaur industries stave off the inevitable?Apr 21, 2014, Vol. 19, No. 30 • By IRWIN M. STELZER
"The dinosaurs surviving the crunch” was how Stephen Sondheim described women living an outdated lifestyle and grimly aware that “everybody dies.” If Sondheim had the slightest interest in the less exalted subject of economics, he would apply that descriptive to a host of companies and industries trying to beat the hooded man with a scythe, aided by their regulators.
12:00 AM, Aug 17, 2013 • By IRWIN M. STELZER
The antitrust lawyers I have served as a consultant often have the same complaint: Their clients don’t know when to shut up. This was certainly true of the executives of US Airways and American Airlines as they touted the virtues of their proposed $11 billion merger. US Airways president Scott Kirby reportedly said consolidation allows airlines to raise fees and charge for baggage, and the company’s CEO, Doug Parker spoke of the virtues of “rationalization,” which antitrust enforcers have always taken to mean higher prices and consumer harm. Now that the Justice Department has decided to sue to stop the merger, the airlines’ lawyers say these comments are taken out of context.
Aug 19, 2013, Vol. 18, No. 46 • By THE SCRAPBOOK
The Scrapbook neglected to follow its usual practice last week and had a look at the reader comments under an online New York Times article. The Times piece covered the growing popularity of so-called electronic cigarettes (which Ethan Epstein chronicled in these pages a few weeks back), noting that people are increasingly using the devices in public places like restaurants and bars. Unlike real cigarettes, e-cigs don’t contain tobacco and don’t emit carcinogenic smoke—they only expel water vapor—so they don’t cause any harm to nonusers.
It would make Buffett's holding company the nation's 'largest utility holding company.'9:18 AM, Jul 31, 2013 • By MICHAEL WARREN
Even if you're Warren Buffett--billionaire investor, founder of Berkshire Hathaway, and Democratic donor--it helps to have friends in high places. Through his holding company MidAmerican Energy, Buffett is currently atttempting to purchase NV Energy, a Nevada-based energy firm, and he's getting some big help from that state's senior U.S. senator, Majority Leader Harry Reid.
Jul 22, 2013, Vol. 18, No. 42 • By THE SCRAPBOOK
While not exactly a national monument, the north entrance to the Dupont Circle Metro stop in downtown Washington, D.C., is a pretty impressive edifice. A large circular granite wall is inscribed with a portion of Walt Whitman’s poem “The Wound-Dresser,” which you can ponder as you slowly descend the 188-foot escalator that takes you to the train underground. The escalators are encased on both sides by sloping concrete blocks with planters interspersed.
The taxpayer-funded Obamacare temperance league. Jul 8, 2013, Vol. 18, No. 41 • By MARK HEMINGWAY
When Prohibition ended in 1933, Pennsylvania governor Gifford Pinchot promised to make purchasing alcohol “as inconvenient and expensive as possible.” To this day, Pennsylvania has some of the most stringent—and absurd—liquor laws in the country. Beer and wine can’t be sold in grocery stores, and you can only purchase six-packs of beer at delis or under the counter at bars and taverns, and no more than two six-packs can be purchased at a time.
11:22 AM, Jun 7, 2013 • By DANIEL HALPER
At a Democratic fundraiser in Palo Alto, California, President Barack Obama described himself as a common sense Democrat.
Nearly double the cost of the first three years of Bush and Clinton combined.2:29 PM, Jan 30, 2013 • By JEFFREY H. ANDERSON
As Adam White discusses in detail, there’s nothing moderate or incremental about the increase in federal regulations — and hence in centralized executive power — under President Obama. To the contrary (as White notes), according to figures published by the Obama White House (see table 2-1), the costs of regulations issued by this administration have dwarfed the costs of regulations issued by prior administrations.