August 21 2013

Are We Still a Nation of Laws, Not Men?

Charlotte Hays

Quote of the Day:

...in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.

That is from Thomas Paine's famous polemic Common Sense. Charles C. W. Cooke uses it this morning to lead into his piece on Congress’ ceding its authority to the executive branch. The title of Cooke's piece on National Review Online’s homepage is “How Republics Die.”

Cooke writes:

One of the more insidious developments of this presidential era has been the replacement of prescriptive, detailed, and fixed domestic law with bloated and open-ended legislation that is punctuated ad nauseam with instances of “the secretary shall.” As my colleague Andrew Stiles has noticed, the Senate’s desired immigration bill fits this new model of “living law” perfectly.

This should come as no great surprise to anyone. Obamacare, which makes the Senate’s immigration bill look like an exercise in legislative restraint, contains over 2,500 references to the secretary’s discretion, 700 cases in which the secretary “shall,” 200 instances in which the secretary “may,” and 139 cases in which the secretary “determines.” Its twin, Dodd-Frank, which effectively allows an unelected Consumer Financial Protection Bureau to police the personal-finance sector, is little different, aggregating the power of the three branches into one, stripping Congress of its traditional capacity to set an agency’s budget and severely limiting the courts’ opportunity to review the CFPB’s legal interpretations. This is law, Jim — but not as we know it.

Laws written like this, Cooke points out, give the president the power to run parts of the economy as he wants to. This stands in opposition to what George Orwell called “the all-important English trait”—the belief that the law is above the state. Law under the new, evolving system, however, becomes subject to the executive’s whim.

The president’s unilateral delay of parts of ObamaCare, however we may welcome any respite from this onerous law, is actually disobeying the law as written. It is rewriting the law without Congress. But are Americans up in arms about this abrogation of what was once Congress’s authority? David Axelrod recently cited polls showing that Americans like what the president is doing with regard to implementation of ObamaCare, despite his use of likely illegal means.

Also alarming, Congress doesn’t seem to mind:

But for the essential balance of power to be upset, one needs neither a tyrant nor a coup; one needs only a compliant or underconfident branch of government. This we have seen since Obama’s inauguration. In the past four years, Congress has happily handed over to the executive branch regulation of the environment, of the financial sector, and of the health-care market. It is currently considering doing the same thing with immigration.

George Washington’s parting warning about the “necessity of reciprocal checks of political power, by dividing and distributing it into different depositories and constituting each the guardian . . . against invasions by the others” has never looked more prescient. The legislature, which has for so long now deferred to the president, must insist that, if Americans are to be governed by law, that law must be precise, and it must be dead. Down the “living law” road lies caprice — and caprice, remember, leads to tyranny.

Unless Congress asserts itself or the people make it clear that we don't want this, the government will be utterly transformed. The rule of law will have been abandoned in the favor of rule by the executive.

Congress, of course, is vilified every time it fails to bend to the president's will. But they weren't sent here to make nice.

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