When our Founding Fathers devised our Constitution in 1787, they sought to balance power between the Executive, the Congress, and the Judiciary. Each would have their duties. Each was a separate but equal partner in a federalist system between the States and the Federal Government.
Yet in the years since our Republic was designed under the Constitution, the balance of power has shifted in ways that endanger our freedom. Look at our situation today. We have an executive branch that in recent years has taken to issuing Executive Orders (EO) to accomplish that which should be legislated by the Congress. Presidents in the modern era have decided that if they cannot get their way with Congress, they will circumvent the Constitution which vests in Congress the sole responsibility and right to make laws. The President’s role is to either approve legislation or veto it. If the former, then to implement it and see that it is obeyed. If the latter, then to send it back to Congress for refinement, which also could result in Congress overriding a veto to make the bill law over the President’s objections.
Congress, however, is part of the problem. For years now, they have unwisely, and some say, unlawfully abandoned their legislative prerogatives to faceless bureaucrats in the executive branch of the government. Often passing loosely-worded statutes on this or that topic, Congress authorizes agencies of the government to make rules on how the laws should be implemented. That is unavoidable to a certain extent. Often regulations must be made to properly implement a law in a practical form.
But when significant specifics are omitted from legislative wording, the bureaucracy is often left to fill in the spaces between what Congress intended in the legislation and what the bureaucrats think should have been the intent of Congress. Therein lies the problem. Bureaucrats must not be left to guess what Congress meant or to impose what Congress should have meant in a particular statute. This amounts to an unlawful delegation of the power to legislate by unelected bureaucrats in the executive branch. In essence, Congress is shirking its duty when it passes a law that gives expansive options to bureaucrats to fill in that which Congress has wrongly left undefined.
As a matter of interest, state legislatures generally do not legislate in such a sloppy fashion. They often are quite clear concerning their intent in legislation. How? By using clear language to address how a law should operate as well as the specific guidelines government agencies must observe in implementing the law. Congress must do just that, and no less.
Unfortunately, the use of both EOs and loosely crafted legislation has become increasingly routine. And in recent years the courts have struck down executive order fiats and bureaucratic overreach, often citing a lack of authority from Congress to do either. Those decisions were wise, whether rendered against Democrat or Republican presidents.
However, even court decisions in the past have been part of the problem. In the 1980s, the Supreme Court established the Chevron Doctrine. This was a legal theory that said if a federal regulation is challenged by a citizen, the courts should defer to the establishing agency’s interpretation concerning whether Congress gave the bureaucrats the authority to issue expansive regulations around a particular law. Moreover, that if the unelected agency’s interpretation was “reasonable” and Congress had not addressed the question directly, the regulation was lawful. In devising the Chevron rule, which in turn came about via Congressional neglect, the Courts affirmed legislative malpractice. That ended this year in a 6-3 decision last month that struck down the Chevron Doctrine.
At issue was what you could call a “David vs. Goliath” dispute. In New England, a group of commercial fishermen sued the federal government for mandating that fishermen pay $700 for “at sea monitors,” who venture out to supervise a fisherman’s catch. They argued—correctly—that Congress didn’t include in the law the authority for a federal agency to levy the cost of these monitors on individual fisherman. In taking an ax to the root of Chevron, the Supreme Court has ended a decades-old legal doctrine that shielded executive branch agencies in legal disputes from citizens who were bullied by bureaucratic law-making. Moreover, now that Chevron has been banished, Congress and the President will have work together to rein in the “faceless leviathan” of federal agencies. That is a very good thing.
Our Founders never intended for Congress to delegate their law-making to either the President or his minions. They never believed that Presidents should ride roughshod over Congress and the Courts with expansive and unconstitutional EOs. They never imagined unelected people would create laws.
Fortunately, we now have a Supreme Court that knows how to read the Constitution, even if Congress and the President can’t.
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