MORE OF THIS, PLEASE: Senator Mike Lee (R-UT) and Congressman Jeb Hensarling (R-TX) have an oped in NRO, “A Stronger Congress, a Healthier Republic.”
The federal government is broken. And while there is plenty of blame to go around, only Congress can fix it.
We don’t mean this as an indictment of any one leader or party, because the dysfunction in Washington today has accreted over decades, under Houses, Senates, and presidents of every partisan combination, as well as the many different justices of the Supreme Court. . . .
The stability and moral legitimacy of America’s governing institutions depend on a representative, transparent, and accountable Congress to make its laws. For years, however, Congress has delegated too much of its legislative authority to the executive branch, skirting the thankless work and ruthless accountability that Article 1 demands and taking up a new position as backseat drivers of the republic.
So today, Americans’ laws are increasingly written by people other than their representatives in the House and Senate, and via processes specifically designed to exclude public scrutiny and input. This arrangement benefits well-connected insiders who thrive in less-accountable modes of policymaking, but it does so at the expense of the American people — for whose freedom our system of separated powers was devised in the first place.
In short, we have moved from a nation governed by the rule of law to one governed by the rule of rulers and unelected, unaccountable regulators. Congress’s abdication, unsurprisingly, has led to a proliferation of bad policy and to the erosion of public trust in the institutions of government. Distrust, also unsurprisingly, is now the defining theme of American politics. . . .
That is why we have joined with eight colleagues in the House and Senate to develop and promote a new agenda of structural reforms that will strengthen Congress and reassert its vital role in our society. We call it the Article 1 Project (A1P). . . .
First, Congress must reclaim its power of the federal purse. Our formal budget process, which dates to 1974, has fallen apart, and we must restructure it for a post-earmark world. We need to bring entitlement programs back onto the actual budget and bring self-funding federal agencies back under annual appropriation.
Second, we need to reform legislative “cliffs” that loom behind expiring legislation — at the end of the fiscal year and when the federal debt nears its statutory limit — to realign the incentives of the American people and their government.
Third, Congress must take back control of actual federal lawmaking. Today, the vast majority of federal laws are unilaterally imposed by executive-branch agencies. The bureaucrats in these agencies then serve as police, prosecutors, and courts in the ensuing cases. All major regulations should be affirmatively prioritized and approved by a vote of Congress.
Finally, we must clarify the law governing executive discretion, which right now allows presidents and federal bureaucrats to ignore or rewrite federal statutes, so long as they have a clever enough reason.
Yes, yes, yes, and yes to these four commonsense proposals. But they are only a small start in the right direction. Congress’s voluntary abdication of its legislative power since the early twentieth century is perhaps the single most significant flaw in our constitutional architecture– and one that the founding generation never foresaw. As James Madison expressed it in Federalist No. 48:
[I]n a a representative republic where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength . . . it is against the enterprising ambition of this department [the legislature] that the people ought to indulge all their jealousy and exhaust all their precautions.
Like Dorothy and her ruby slippers, Congress has always held the power to “go home” and restore the Constitution’s separation of powers. It can simply click its collective heels and, well, legislate, particularly in areas such as the power of the purse and passing statutes that carefully circumscribe (and limit judicial deference to) the unconstitutional “fourth branch” of the administrative state.
Of course the success of the Article I Project (or any similar effort) will require either: (1) a President who does not veto any such laws (i.e., a Republican President); or (2) a veto-proof supermajority of two-thirds of both chambers of Congress (i.e., a House and Senate comprised of at least two-thirds GOP members). Sadly, the Democrats have shown zero willingness in restoring Congress’s constitutional power, and have indeed cheered President Obama’s incessant executive power grab.
