OPINION:
The House and Senate leadership of the next Congress should establish a Joint Committee on Regaining and Defending Congressional Prerogatives and Responsibilities.
The alternative is for the United States to be ruined by presidential hubris, stupidity and adventurism. Every empire has been destroyed by a concentration of power in the executive. Only the unschooled can fail to see the figurative iceberg ahead ready to sink the nation.
True enough, Congress is not flawless. To err is human. But the deliberate, if not glacial pace, of Congress safeguards against rashness. And the greatest calamities in the life of a nation come from too little caution, not from too much prudence.
Without a syllable of supporting constitutional text, the executive branch now exercises virtually every congressional authority enumerated in Article I, Section 8 through a combination of usurpation and voluntary surrender.
The president decides on war — the Ursa Major of all national decisions that threatens life, liberty, transparency, solvency and the separation of powers.
The president makes foreign policy by executive agreement in lieu of treaties.
The president collects foreign intelligence without statutory authorization or restrictions.
The president decides what documents to classify and to conceal from Congress and the people.
The president makes immigration policy by creating wholesale deportation exemptions for illegal immigrants he deems worthy.
The president spends money in violation of appropriations restrictions set by Congress.
The president controls vast swaths of the economy by regulations or executive orders ranging from minimum wages to greenhouse-gas emissions.
The president decides the majority of discretionary spending.
The president invokes state secrets or issues signing statements to shield or exempt him from the law.
The president’s most powerful White House advisers escape Senate confirmation or oversight.
These awesome powers are indistinguishable from Roman emperors, as described by Edward Gibbon in “The Decline and Fall of the Roman Empire”:
“The emperors, as the first ministers of the republic, were exempted from the obligation and penalty of many inconvenient laws: They were authorized to convoke the Senate, to make several motions in the same day, to recommend candidates for the honors of the state, to enlarge the bounds of the city, to employ the revenue at their discretion, to declare peace and war, to ratify treaties; and by a most comprehensive clause, they were empowered to execute whatsoever they should judge advantageous to the empire, and agreeable to the majesty of things private or public, human or divine.”
A counter-constitutional imperial presidency might be tolerable if the results were at least benign. But they have been disastrous — saddling the nation with perpetual, global, purposeless wars risking blowback, an $18 trillion debt, a crippling of liberty and transparency, a sputtering economy and otherwise.
A Joint Committee on Regaining and Defending Congressional Prerogatives and Responsbilities is necessary not only to restore the Constitution, but to save the country.
The committee would be about which branch decides. As to policy, the committee would be neutral.
It would prepare legislation and initiate litigation to regain prerogatives that have been delegated or usurped by the executive branch and to forestall new encroachments. An initial agenda should include the following:
Prohibiting the president from expending any monies of the United States to employ the military offensively unless expressly appropriated by Congress for that purpose.
Prohibiting the president from expending any monies of the United States to collect, retain or analyze intelligence that is not shared with Congress.
Prohibiting the president from expending any monies of the United States to gather intelligence concerning a United States person unless expressly authorized by statute.
Prohibiting the president from expending any monies of the United States to implement any executive agreement with foreign nations not expressly authorized by statute or treaty.
Prohibiting the president from expending any monies of the United States to implement any executive order that addresses a subject within one of the enumerated or implied powers of Congress.
Imposing a $50,000 personal fine on executive officials for each day of noncompliance with a congressional subpoena.
Requiring Senate confirmation of the president’s national security adviser, White House counsel and any White House czar.
Sunsetting all major executive branch regulations after five years, subject to reissuance based on a fresh administrative record.
Limiting the mission of the Board of Governors of the Federal Reserve to price stability.
Establishing standards for the classification and declassification of documents with stiff sanctions for overclassification.
Mandating an independent audit of the Defense Department.
Not since President Nixon’s Watergate travails has the political universe been more propitious for a congressional resurgence. President Obama is a lame duck. His approval rating has plunged to 40 percent. His incompetence abroad and at home have reached industrial scale.
All that is necessary for Congress to succeed is unity and courage from the House and Senate leadership.
Bruce Fein is a former associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan. He is author of “American Empire Before the Fall and Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy (Palgrave Macmillan, 2009).
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