Faux laws empower executive branch

January 16, 2011


— Unlike most of the 111 that preceded it, the 112th Congress must begin the process of restoring the national regime and civic culture the Founders bequeathed. This will require reviving the rule of law, reasserting the relevance of the Constitution, and affirming the reality of American exceptionalism.

Many congressional Republicans, and surely some Democrats with institutional pride, think Congress is being derogated and marginalized by two developments. One is the apotheosis of the presidency as the mainspring of the government and the custodian of the nation’s soul. The second is the growing autonomy of the regulatory state, an apparatus responsive to presidents.

The eclipse of Congress by the executive branch and other agencies is Congress’ fault. It is the result of lazy legislating and lax oversight. Too many “laws” actually are little more than pious sentiments endorsing social goals — environmental, educational, etc. — the meanings of which are later defined by executive-branch rule-making. In creating faux laws, the national legislature often creates legislators in the executive branch, making a mockery of the separation of powers. And Congress makes a mockery of itself when the Federal Register, a compilation of the regulatory state’s activities, is a more important guide to governance than the Congressional Record.

Unfortunately, courts long ago made clear that they will not seriously inhibit Congress’ scandalous delegation of its lawmaking function to others. So Congress should stop whining about the actions of the EPA (emissions controls), FCC (“net neutrality”), Interior Department (reclassifications of public lands) and other agencies, and should start rereading Shakespeare: “The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.”

Conservative senators passing through the Capitol reception room should ponder the portrait of Ohio’s Robert Taft (d. 1953), who was conservatism when it stressed congressional supremacy. America was born in recoil against an overbearing executive’s “repeated injuries and usurpations” (the Declaration of Independence); modern conservatism was born in reaction against executive aggrandizement, first by Franklin Roosevelt, then by his acolyte Lyndon Johnson.

But beginning in 1968, Republicans won five of six and then seven of 10 presidential elections, and experienced rapture with Ronald Reagan. Then they lost their wholesome wariness of executive power. Today, conservatives should curl up with a good book by a founding editor of National Review — James Burnham’s “Congress and the American Tradition.”

Regarding the relevance of the Constitution, you must remember this: Rep. Nancy Pelosi, asked about the constitutionality of the health care legislation — a subject now being seriously litigated — said, “Are you serious? Are you serious?” She was serious.

She seriously cannot comprehend that anyone seriously thinks James Madison was serious when he wrote (Federalist 45), “The powers delegated by the proposed Constitution to the federal government are few and defined.” Unfortunately, for too long too many supine courts have flinched from enforcing the doctrine of enumerated powers, and too many Congresses have enjoyed emancipation from that doctrine. So restraint by the judiciary must be replaced by congressional self-restraint.

The idea of American exceptionalism is obnoxious to progressives, who, evidently unaware of the idea’s long pedigree (it traces to Alexis de Tocqueville) and the rich scholarship concerning the idea, assume it is a crude strain of patriotism. America, Tocqueville said, is unique because it was born free — free of a feudal past, free from an entrenched aristocracy and established religion.

The American Revolution was a political, not a social revolution; it was about emancipating individuals for the pursuit of happiness, not about the state allocating wealth and opportunity. Hence our exceptional Constitution, which says not what government must do for Americans but what it cannot do to them.

Americans are exceptionally committed to limited government because they are exceptionally confident of social mobility through personal striving. And they are exceptionally immune to a distinctively modern pessimism: It holds that individuals are powerless to assert their autonomy against society’s vast impersonal forces, so people must become wards of government, which supposedly is the locus and engine of society’s creativity. Two years into Barack Obama’s presidency, we now know what he meant about “hope” and “change” — he and other progressives hope to change our national character. Three weeks into his presidency, Newsweek, unhinged by adoration of him, and allowing its wishes to father its thoughts, announced that “we are all socialists now” and that America “is moving toward a modern European state.” The electorate emphatically disagreed, and created the 112th Congress, with its exceptionally important agenda.

— George Will is a columnist for Washington Post Writers Group.


cato_the_elder 7 years, 3 months ago

"The American Revolution was a political, not a social revolution; it was about emancipating individuals for the pursuit of happiness, not about the state allocating wealth and opportunity. Hence our exceptional Constitution, which says not what government must do for Americans but what it cannot do to them."


just_another_bozo_on_this_bus 7 years, 3 months ago

The American Revolution was primarily about the economic elites of the American colonies declaring themselves independent of the economic elites of England. For the great majority of them, there was little or no thought of lifting the huddled masses. Quite the contrary, they fully expected that there would remain considerable class distinctions, and government would be solely under the purview of these elites, even though they eventually decided against instituting a monarchy.

Corey Williams 7 years, 3 months ago

Yes, of course. Now that there is a Democratic president, by all means question the authority given when it was a Republican president.

Orwell 7 years, 3 months ago

Wow. Now there's a cogent argument.

Let us know if/when you evolve past name-calling.

bskepnek 7 years, 3 months ago

What Americans revolted against was entrenched privilege. They revolted against "blue blood". "Privilege" controlled access to schools; military command; and government. "Privilege" controlled the church, and academia. And property, gathered into the hands of a few families, was the source of aristocratic power.

America's answer was a denial of titles, the President was to be called simply "Mr." "American Exceptionalism", based on democracy, was built upon free public education, and limitless opportunity on the frontier. But both the frontier and a free "Liberal Education" are gone. Today's students have accumulated $800 Billion in school debt.

Wealth has been gathered into fewer hands than ever before in our history; wealth controls the lawmakers who pass laws to protect the wealthy. Aristocratic privilege has returned.

ps I'm clearly not anonymous, I just don't know how to change that.

wmathews 7 years, 3 months ago

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You will fill out a form, which will send your request to us. Once we've verified you are who you say you are, we'll add your name to your user account.

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beaujackson 7 years, 3 months ago

Congress should take its responsibilities more seriously.

Also, time for term limits, & no special privileges or retirement pay after serving (i.e.,,not ruling).

Orwell 7 years, 3 months ago

Term limits is a lazy substitute for voter responsibility. If your rep isn't doing a good job, defeat him/her at the polls.

Echo_Narcissus 7 years, 3 months ago

How ad hominem of Mr. Will. Let me guess, the Government, meaning the Congress, the Supreme Court, and especially that “black” President, all conspiring to destroy Mr. Will’s beloved America; what nonsense. Did anyone hear that nonsense from Mr. Will when President Bush was wielding power? The only problem with government is Republicans and their reliance on distorted and deceptive propaganda to regain absolute power. Our founding Fathers pledged their lives and fortunes to create a decent society; something no CEO or a Mr. Will would even consider. So the game is afoot again! Republicans now want to change their “dog-eat-dog” philosophy to something more patriotic, like “exceptionalism!” When one untruth wares off create a new one, that’s Mr. Will’s only insight. That works with some people. Having seen the mentality of the Tea Bag leaders on TV, I would be surprised if any could survive an eighth grade math class more or less a good dog fight. But I am sure they will believe. The Puritans, in early America, made a daily task of feeding and caring for the unemployed and less fortunate, something to do with Christ and his teachings I think - that thing Republicans now call socialism. Mr. Will knows the rewards of what Hans Fritsche, called the Satanic Triumph of propaganda, so he will not change. Mr. Will, you are an exceptionally good writer, that I will note, and I wish I had your writing skills. But through your disingenuous words you may accomplish turning your life and ours to excrement, but nothing on this earth will make that right. In the end, reality not lies and illusions ultimately prevail. Government is not broken Mr. Will, you are! I will comment on every word you write now and in the future, because it is my duty and my privilege. Every decent and moral person in this country should do the same, until this cancer you wish to spread is stopped.

cato_the_elder 7 years, 3 months ago

Echo_Narcissus, you obviously know very little about the Puritans and Puritan society. The cardinal rule under which they operated was, "If you don't work, you don't eat."

Another part of Puritan history that bears careful consideration today is the fact that after they arrived in America they immediately began to conduct their farming operations in a collectivist fashion, with everyone working for the community as a whole instead of for himself. After they nearly starved, they broke up their collectivist farming scheme in favor of individual farming operations. After individual citizens began farming their own tracts of land, the entire society prospered.

Food for thought.

cato_the_elder 7 years, 3 months ago

Says you, Bozo. Looks like you are also in need of studying Puritan history.

Paul R Getto 7 years, 3 months ago

"and affirming the reality of American exceptionalism.." Reality, Mr. Will? Really? Exceptionalism, like the skygod on whom it depends, is yet another invention. We are an exceptional nation, because we were forged in the enlightenment and tried to divorce ourselves as much as possible from the tradition of Kings ruling in the name of an 'alleged god.' We are the best in the world if we can keep it, but if we do it will be because we finally grow up, not because our invisible friend deems it so.

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