Reviving a Constitutional Congress

Christopher DeMuth Sr. is a distinguished fellow at the Hudson Institute. He served as president of the American Enterprise Institute from 1986–2008. A graduate of Harvard College and the University of Chicago Law School, he worked as a staff assistant to President Richard Nixon in 1969–1970 and as an administrator in the Office of Management and Budget and executive director of the Presidential Task Force on Regulatory Relief under President Ronald Reagan. From 1976–1980, he taught at the Harvard Kennedy School of Government and directed the Harvard Faculty Project on Regulation. He has also practiced law, and was for a time publisher and editor-in-chief of Regulation magazine.

The following is adapted from a speech delivered on September 15, 2015, at Hillsdale College’s Sixth Annual Constitution Day Celebration in Washington, D.C.

Our Constitution is often treated as a reliquary, worthy of reverence but no longer of much practical use. Yet the Constitution reflects, in many deep and subtle ways, the character of the people who established it and have lived and prospered under it for centuries. This is particularly true of its structural features of federalism and separated powers, which vindicate Americans’ democratic nature, our distrust of power, and our taste for open competition.

The struggle for power and advantage is a constant of human society. In democracies, that struggle is organized and advertised through political campaigns and elections. It is equally present within government, but there it is not always observable. In the parliamentary systems of Europe, open competition ends with the election returns and formation of a government. At this point legislative and executive powers are fused. Struggles over policy continue, but they work themselves out in private within ministry offices and leadership councils. A well-led government can present, at least for a time, a unified, dignified, self-confident public face.

That is seldom possible in the American system, where competition in government is exposed for all to see. The two political branches possess separate electoral bases and are assigned powers that are partly shared and partly independent. They are co-dependent and must work out their differences in public. Presidents, executive officials, and members of Congress may bring astute tactics and compelling rhetoric to the task, but in the heat of contention they are also prone to diatribes, bluffs, missteps, backtracking, and humiliations. Dignified the process is not.

Parliamentary systems have their strengths, but open competition is the American way. Checks and balances are important means of policing the corruption and abuse that arise whenever power is monopolized. They are also means for pursuing two things that Americans care about especially: limited government and humble leaders. The sheer cumbersomeness of our constitutional structure usually requires extended negotiation leading to a substantial consensus before the government can act. And the spectacle of continuous public extemporizing makes it difficult for our leaders to pretend that they command events.

Yet our system depends on a reasonable balance of power among the three constitutional branches, and we are losing that. In recent decades power has shifted dramatically away from Congress—primarily to the executive but also to the judiciary.

Part of the shift has resulted from presidents, executive agencies, and courts seizing congressional prerogatives. This part of the story has been much in the news. President Obama has effectively rewritten important provisions of the Affordable Care Act and immigration law, while circumventing the Constitution’s requirement of Senate approval for senior executive appointments. The Environmental Protection Agency has contorted the Clean Air Act beyond recognition to regulate carbon dioxide and other greenhouse gasses—and has done so after Congress declined to embark on such regulation. The Supreme Court has acquiesced in most of these executive usurpations, while taking for itself the authority to decide live political controversies. It played both roles last June, first approving the Obama administration’s unilateral extension of tax credits to persons who purchase health insurance on the federal Obamacare exchange, then declaring same-sex marriage a constitutional right.

But the most important part of the story has an opposite plot: Congress itself, despite its complaints about executive and judicial poaching, has been giving up its constitutional powers voluntarily and proactively for decades. Since the early 1970s, Congress has delegated broad lawmaking authority to a proliferating array of regulatory agencies, from EPA and OSHA in the early years to numerous executive councils, boards, and bureaus under Obamacare and Dodd-Frank in 2010. In the new dispensation, members of Congress vote bravely for clean air, affordable health care, and sound finance, while leaving the real policy decisions to executive agencies.

This is Part One of a multi-part series. Keep watch for the next installment!

Reprinted by permission from Imprimis, a publication of Hillsdale College.