Executive Branch Overreach? Lawmakers Blame Themselves

New York Times

By Carl Hulse

February 8, 2016

Executive Branch Overreach? Lawmakers Blame Themselves

Republicans outraged over abuse of executive authority typically blame power-mad Democratic presidents for acting outside the Constitution. Not Senator Mike Lee, the conservative Utah Republican.

“This is of our own making,” said Mr. Lee, pointing his finger directly at Congress for a steady ceding of power from Capitol Hill to the executive branch. “Congress has recast itself as a back-seat driver in American politics.”

Lawmakers’ actually accepting responsibility for the weakened state of Congress represents a new phase in the struggle over executive authority. But Mr. Lee and his allies in a nascent conservative effort to reset the balance of power acknowledge that Congress has forsaken its authority partly to dodge tough decisions and make it easier for lawmakers to be re-elected. By not exerting itself on difficult issues, Congress created a vacuum that the executive branch naturally filled.

Through a new movement called the Article I Project, Mr. Lee, Senator Jeff Flake of Arizona, Representative Jeb Hensarling of Texas and other congressional Republicans are joining the effort to find a way for Congress to take back some of the power.

The initiative was introduced at the Washington outpost of Hillsdale College of Michigan, under a large painting of the signing of the Constitution. It aims to spur Congress to re-establish its power of the purse, end the series of “cliffs” used as leverage to force bills through as deadlines loom, reassert congressional power over federal regulation and limit executive discretion.

The agenda calls for changing budget laws to give Congress more direct control over spending, eliminating the risk of default that has led to years of fiscal brinkmanship, bringing regulatory agencies under stricter congressional review and more clearly spelling out how much latitude executive agencies have in interpreting federal laws.

Success on any one of these would be a triumph. But those behind the Article I Project might have a better chance than the Republican governors now clamoring for a new constitutional convention to restore states’ rights. The only federal constitutional convention that has occurred so far is the original one depicted in that oil painting hanging at the Hillsdale College building.

Those involved with the new undertaking, which is being referred to in shorthand as A1P, say they cannot dawdle if they are to have any hope of reasserting the supremacy that the founders intended when they made the creation of Congress the first element of the Constitution.

“There is no way we can win the political battle if we have one bill at the end of the year and have one up-or-down vote,” said Mr. Flake, a longtime advocate of congressional reform, referring to last year’s huge spending and tax bill.

Republicans are pursuing other avenues to hold the administration in check. A legal challenge by House Republicans accusing the Obama administration of spending money on the new health care law without congressional approval is proceeding in federal court in Washington. Republicans have won surprising early victories in the case that could rein in future administrations as well.

But those behind the new drive say Congress must restore itself, and a policy paper turned out for the Article I Project was unsparing in its criticism.

“Today, Congress willfully shirks this responsibility, and permits — and indeed often encourages — the executive branch to do work the Constitution assigns to the legislature,” the position paper said. “Congress’s refusal to use its powers — to do its duty — is the root cause of Washington’s dysfunction and of the public scorn it invites.”

One prime example of how Congress is refusing to use its powers is the debate over whether to provide President Obama with an authorization for the use of military force against the Islamic State. Mr. Flake, along with Senator Tim Kaine, Democrat of Virginia, and others, has been pressing for Congress to exercise its exclusive constitutional power to declare war against the militant group, but congressional leaders have been reluctant to act.

One reason is that lawmakers would rather avoid taking a war vote — always a wrenching proposition and one that can look quite different in retrospect — and instead let the White House take responsibility. That approach lets Congress off the hook, but in the long term it erodes its power.

A chief question is whether Republicans now agitating so strongly for Congress to step up would be doing so if a Republican were president.

Republicans were not similarly up in arms when Democrats accused President George W. Bush of constitutional overreach with warrantless wiretapping and unilateral antiterrorism policies. By contrast, Democrats have largely supported Mr. Obama’s executive immigration orders and other actions that Republicans have characterized as dictatorial.

Yet if there is to be any success at reversing the power flow, it will take both parties. Mr. Flake believes it is possible.

“There are Democrats who are troubled by the same things,” he said, noting that he and some other Republicans voiced concerns over executive excesses during the Bush years. “This is not just a partisan issue. There is an accumulation of power in the executive branch that is unprecedented.”

In Washington, power, once relinquished, has proved difficult to regain. It will take a concerted effort for Congress to reassert itself, no matter which party occupies the White House.

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