When Congress fails to act, it transfers power to the President, whose executive orders lack the authority and legitimacy of laws that emerge from the robust public debate of the traditional legislative process.
There is a widespread sense, both in Washington and around the country, that Congress has just ended one of the most listless and unproductive sessions in memory. When its members bolted town to go home and campaign, they left a long list of big issues unaddressed — immigration reform, “the fiscal cliff,” climate change, entitlement reform, cyber-security. Even worse, they ignored the basics, too: a new farm bill; a Postal Service that desperately needs restructuring; spending bills to keep the government operating beyond next March.
So there’s no mystery why Congress’s standing is so low not just among the public at large, but also among the people who pay close attention to its behavior. “An unsurpassed record of failure,” is how USA Today characterized the just-concluded session.
There are consequences to this fecklessness, most of them pretty obvious: the nation’s many challenges are not being met, and everyone trying to plan ahead, from postal workers to farmers to federal contractors and most businesses in the country, is left in limbo. What is less appreciated is that when Congress fails to act, there is another consequence as well: it unwittingly transfers power to the President.
You can see this dynamic in play right now on the issue of cyber-security. A recent “denial of service” attack on six major US banks — which caused internet blackouts and online banking problems — illustrates why the issue has moved to the front burner in Washington. Indeed, many experts believe that computer intrusions and network attacks have become the greatest threat to our national security. Yet Congress, despite the urgent efforts of several of its leading members, was unable to agree on an approach to the issue; it adjourned without producing legislation to protect the nation’s digital infrastructure.
So voices within the national security establishment have urged President Obama to take action now, by issuing an executive order to put in place standards for protecting against cyber attacks. Indeed, even before Congress adjourned, such an order was being drafted; critics have labeled the move a power grab, but there’s a widespread consensus that national security requires action now, not when Congress can get around to it.
There’s a certain logic to this. If Congress can’t act on urgent matters, then Americans expect the President to do so. The White House even has a slogan — “We Can’t Wait” — for the long list of policies it has crafted. It’s issued orders creating jobs for veterans, raising fuel economy standards, halting the deportation of illegal immigrants who entered the U.S. when they were children, changing welfare policy to allow states to test new approaches to boosting employment, making it easier for students to repay their federal student loans, and helping distressed homeowners refinance their mortgages. You might argue that the White House has had the productive session that Congress ought to have had.
But let’s not pretend that this is how things should be. Executive orders may put needed policies in place, but they are also a unilateral exercise of presidential power that turns away from the constitutional division of power between the president and Congress. By their nature they cannot be as comprehensive and inclusive as legislation passed by the time-honored, traditional legislative process.
More to the point, executive orders are produced only within the executive branch. They have not been through the give and take of the lawmaking process, they have not been shaped by robust debate, and they lack the authority and legitimacy that legislation produced in full public view enjoys. There is a reason the Framers of the Constitution invested the power to initiate legislation in Congress — that is where the American people have the greatest leverage. Small wonder the courts tend to give less deference to executive orders than they do to legislation enacted by Congress.
When Congress becomes so tied up by partisanship that it cannot act, it hurts everyone who might have been helped by its failed legislation. But its chief victim is itself, as it foregoes its own constitutionally mandated role in our republic and hands more power to the President.
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.
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