It’s Time To Exercise the Legislative “Veto”
David Corbin and Matt Parks
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The apoplectic and apocalyptic will scoff at the suggestion that this past week’s executive amnesty could help fuel a partial revitalization of our republic. So why is there room for optimism that something can be done–and what?

President Obama’s threatened and now announced executive amnesty has, not for the first time, drawn pundits, politicians, and the American people, Left and Right, back to the Constitution to reflect on what, exactly, the president and Congress are supposed to do. That, in and of itself, is a good thing–an indication that, at some level, we all still recognize the need to square our political behavior with our (collective) political principles.

Judging by the results, those on the Left have not liked what they have found in the Constitution. The leading talking point of the last week has been “Republican presidents (including Ronald Reagan) did the same thing.” A number of people have shown (see here and here) that, in fact, the actions of President Reagan and his successor, George H.W. Bush, are clearly distinguishable from President Obama’s.

But suppose they weren’t. Tu quoque (“you too!”) may be good politics, but it’s bad logic and, if possible, worse legal and constitutional reasoning. (It’s not a solid defense against speeding to suggest that you were only keeping pace with the car in front of you.) Better to conclude that both Republican and Democratic presidents have violated the plain intent of the Constitution than to wrench the Constitution into justifying what they did, simply out of partisan loyalty. Are any of us willing to prostitute our integrity for parties so unworthy of the sacrifice?

The president’s (slightly) more sophisticated defenders have resorted to a “devil made me do it” defense. Who’s the “devil” in this case? First choice is, naturally, House Republicans, who, according to outgoing Senate Majority Leader Harry Reid, had 510 days to do something about immigration, starting the clock from when the Senate passed an immigration reform bill.

Choosing not to legislate is, of course, a perfectly legitimate legislative act–one that Harry Reid (tu quoque) knows a lot about, with more than 300 House bills awaiting action in the Senate. Surely the House doesn’t have to pass a bill it disapproves to keep the president from implementing part of what it disapproves. Shorter Senator Reid: heads I win; tails you lose.

But if the House’s (in)action is perfectly legitimate and we’re still stuck, then maybe the devil is actually the (founders-designed) system. That, at least, was the suggestion of Garrett Epps, writing for The Atlantic last week. Prof. Epps argues in ominous tones that we could use a “six month moratorium on paeons to the wisdom of the framers,” since they failed to anticipate “divided government”–when one party controls the Congress and another party the presidency–leaving us in a “dangerous” position that will “probably” lead to government “shutdown, perhaps default, and possibly impeachment.”

Choosing not to legislate is, of course, a perfectly legitimate legislative act–one that Harry Reid (tu quoque) knows a lot about, with more than 300 House bills awaiting action in the Senate.

Much could be said in response to this charge against the founders–starting with the fact that the they didn’t just anticipate divided government, they designed the government to be divided with the separation of legislative, executive, and legislative powers. If they erred, it was in assuming (a) that the government would be divided as much (or more) legislature against executive as Party X against Party Y and (b) that parties would be more numerous and fluid than they have turned out to be.

They hoped, in other words, for something better in congressional leaders than sycophantic ideologues, like Senator Reid, who invite the president to “go big” in usurping legislative authority, but they harbored no illusions that their system would facilitate expansive legislative programs, which were neither needed (see Federalist 53) nor conducive to self-government (see Federalist 62).

Gridlock, most of the time, was a better option that bad or frequent lawmaking–and the occasional times when it frustrated good initiatives were a reasonable price to pay for avoiding the assaults to enterprise and liberty of a voluminous and unstable legal code.

That, in fact, was one of the two reasons Alexander Hamilton gives in Federalist 73 to justify the president’s veto power. The other (and, in Hamilton’s view, even more important) is equally instructive in this case: to protect the president “against the depredations of the [Congress]”–that is, to maintain the separation of powers.

The president needed such protection, both Madison and Hamilton argued, because of the natural strength of the legislative branch in a republican system. As our regime has democratized, we’ve argued elsewhere, the executive branch has become ascendant–indeed all but hegemonic.

As a result, while we still need a presidential veto to protect the executive branch from the (infrequent) assaults of the Congress, we need, much more, an understanding and forthright application of the Congress’s own “veto” power.

The idea of a legislative veto in our system should be something of an absurdity because there are very few places under the Constitution where the executive branch has the initiative–a precondition for a veto power (you veto someone else’s measure, after all).

However, in our day of pseudo-law executive orders and claims of prosecutorial discretion, pseudo-treaty executive agreements, and a dormant Congressional power to declare war, presidents have seized the initiative in almost every area of policy-making. As a result, Congress must consciously and publicly reconceive its appropriation (and correlative defunding) power as not only policy-making, but policy-stopping.

To inactivate or deactivate programs and agencies with the power of the purse is legislative activity fully within its Constitutional authority.

In quiet ways, of course, this is already done. As The Federalist’s Sean Davis writes:

Congress adds riders and prohibitions to appropriations bills all the time. Why? Because it can [“Article 1, Section 9 of the U.S. Constitution”]:

‘No money shall be drawn from the treasury, but in consequence of appropriations made by law[.]’

And from that power of the purse come the most powerful words in federal law:

“Notwithstanding any other provision of law, no funds shall be appropriated or otherwise made available for ______.”

What has yet to happen, however, is for Congress to make the political case, in any kind of systematic or persuasive way, that defunding parts of the federal bureaucracy is not a precursor to a Congress-initiated government shutdown and default, the two horsemen of the Progressive fiscal apocalypse (see Prof. Epps), but a defensive mechanism needed to protect Congress from the “depredations” of the president.

Congressional Republicans, in other words, would improve their ability to respond to the president’s assaults if they spent more time talking about the need for a Constitutional course correction and less time making idle and often insincere threats. When the crisis point in the game of chicken comes, it is too late for a previously chest-thumping Congress, with all the rhetorical disadvantages of diffuse leadership and political division (not to mention a hostile press), to win the sympathy of the general public.

Unfortunately, the lesson Republicans have learned from their previous encounters with President Obama is that a “shutdown” must be avoided at all costs. But if not satisfying the president’s fiscal demands is tantamount to causing a shutdown, we’re back where we started on the immigration question: heads the president win; tails Republicans lose.

Madison wrote in Federalist 48: “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” This is the state of affairs that President Obama has furthered and taken advantage of in his personal appropriation of legislative power on a host of issues. The One Hundred Fourteenth United States Congress would go down as the one of the finest and most dutifully active and vigilant if it were to employ its power of the purse to ensure that constitutional government of, by, and for the American people did not perish on its watch.

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.

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