We’ve seen some blowback in North Carolina after their legislature passed legislation to take some appointee power away from the governor following the narrow election of a liberal governor. The timing may be unseemly, but I applaud a legislature that is trying to take back its authority. For too long, we’ve forgotten the lessons learned in the Revolution regarding strong governors with regal authority. The first state constitutions sought to reduce the possibility of imperial rule by putting most power in the legislative hands and by limiting governors to short terms with limited veto power. Over the years, people have gotten lazy and allowed governors longer terms and stronger veto power. And legislatures too often have passed general legislation allowing the executive not only put the laws into effect but given them wide discretion in fleshing out the details of the laws themselves. This led inexorably to regulatory power unchecked by the people’s representatives, effectively enacting a law that has no popular foundation.
In Alabama, for example, though the governor does have a veto, it amounts most of the time to nothing more than an advisory opinion. Unless, the legislature has adjourned, it may easily override the governor’s veto with a simple majority. The Legislature enjoys the power to set the agenda with little interference from the governor. And with fairly small budgets and low taxes, the legislature has managed to check the growth of the state bureaucracy. This has been the hallmark of most of the Red states. Unfortunately, the larger states have followed the example of our national government and created large bureaucracies that make it easier to thwart the will of the people.
Since the Great Depression, Congress has ceded more and more authority to regulate to executive agencies. Initially, this was done to allow the president to move rapidly and to experiment in a crisis. Over time, Congress got used to passing large pieces of popular legislation. Keeping the laws ambiguous made it easier to forge the coalitions necessary to pass them (60 votes being necessary in the Senate). They would then leave it up to the president’s ministers, ostensibly working with congressional committees, to work out the details.
Congress also created regulatory commissions charged with the power to oversee banking, communications, business and transportation. Because of the great power delegated to them, the laws required the commissioners to be bipartisan with fixed terms to shield them. But by custom, the president is allowed to have a majority from his party on each commission. A two-term president usually appoints a majority who share his ideology and agenda. And so they can work his will. For example, the FCC last year issued controversial rules on so-called net neutrality favored. The FTC, SEC, and others work in the same way. The independence of the independent regulatory commissions turns out to be more a fiction than a reality.
It is worse in the cabinet departments and federal agencies such as the EPA, HHS, DHS, that are directed by a single administrator named by the current president. They are free to issue regulations and exempt favored groups from those regulations. No wonder a president believes he can work without Congress. Short of lawsuits and impeachments, there seems little that Congress can do to rein in individual abuses. The president’s veto power and the two-thirds’ vote needed to override him gives the president the upper hand in dealing with conflicts over policy. This is not what the founders intended. They wanted to make it difficult to pass laws but they expected the president to execute the law as it was passed and not to be making law himself.
When it was usual for Congress to be controlled by the same party as the president, the triangle of Congressional Committee, executive regulator and affected consumer groups could usually mitigate against overweening executive power. But in the age of Obama, this iron triangle’s power has been reduced and Congress has proved unwilling to confront the president. The result has been an embolden president who feels free to use his pen to circumvent the will of Congress.
We must redress this imbalance. This window of opportunity will pass quickly and no doubt there will be future presidents eager to circumvent Congress. Congress must reclaim the power of the purse and use it to rein in the growth and power of the bureaucracy. And, they must narrowly tailor laws so that agencies have less latitude for interpretation. Major new regulations such as net neutrality or reinterpretation of law should require Congressional action. The Courts have taken a dim view of the legislative veto so Congress must avoid its use. They should seek to limit executive authority by amending the laws that set up the agencies. And they must ensure that new laws are written carefully so that future policies have to take into account the wishes of the people’s representatives.