Congress seems happy to have its powers usurped

The abuses have been particularly egregious in the age of Obama. Nevertheless, our present predicament has been a long time in the making. During George W. Bush’s presidency, Republicans routinely took a back seat, a majority of self-described conservatives happily permitting the executive branch to treat them as if they were members of a parliament rather than representatives of a separate and equal branch. In both the 1970s and the 1990s, regulations intended to ensure that Americans enjoyed clean air granted so much authority to the White House that the aims of the enabling legislation became almost impossible to achieve. And, in the 1960s, Congress ceded its role in the war-making process almost entirely, the overly broad Gulf of Tonkin Resolution according to the Johnson administration the opportunity to “take all necessary measures” in pursuit of victory in Vietnam.

We are learning today, perhaps, that our immigration laws are no exception to this deleterious trend. Indeed, that we are even debating whether an American executive enjoys the power to rewrite the country’s immigration regulations should tell us something of paramount and immediate importance: namely, that the laws under which we live today are too broad, too numerous, and far too ripe for exploitation. In my view, President Obama’s latest actions represent a flagrant violation of his responsibility to “faithfully execute” the laws, and a repudiation of the political and constitutional norms that undergird the republic. Wherever lies the point at which legitimate and statutory “discretion” becomes unjustified amendment or cynical nullification of the law, the executive branch sailed past it last night at warp speed. Still, if the specific action that he is taking can be held by loose construction to be permitted per se . . . well, then our laws need rewriting from the ground up.

That there will likely be little enthusiasm for such an endeavor suggests that the republic is headed, gradually, toward a crisis. The Madisonian settlement that has done the country so proud rests heavily on two presumptions: The first, that the fragmentation of political authority will invariably set the various branches off against one another; the second that, motivated by ambition as they tend to be, almost every representative within the firmament will remain sufficiently jealous of his prerogatives to willingly check the rise of his foes. “The accumulation of all powers legislative, executive and judiciary in the same hands,” Madison writes in Federalist 47, “whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” “Powers properly belonging to one of the departments,” he wrote a few weeks later, “ought not to be directly and completely administered by either of the other departments.” Supposing that each person involved in government would place the interests of his branch before his own political proclivities, Madison concluded that to fracture power was to forestall dictatorship and to ensure the rule of law and not of men.