Restoring the Executive/Legislative Balance

A guy I follow on Twitter (@TheOneSoleShoe) has written a very good article about an easy way to fix the imbalance between Executive and Legislative power. Right now, as we’ve seen with President Pen and Phone, the Executive can pretty much use the regulatory power of the bureaucracy to decree new laws, even if they aren’t called such. This is entirely opposed to the concept of American government. If you don’t like it, you can go through a lengthy court process and you might just wind up having bureaucratic over-reach enshrined in a Supreme Court ruling (as ObamaCare was, twice). The fix goes like this:

…Rather than allow the Courts to have the final and only say on the scope, meaning and intent on legislation as manifested in administrative rulings and rule-making, why not alter the APA (Administrative Procedure Act) to give Congress the power to approve all proposed regulations on an up or down vote? Currently all that is required is a “notice and comment” period to satisfy statutory due process requirements. But the Agency still retains practically plenary power over enacting the regulation, enforcing it, and even interpreting it. c.f. Chevron USA, Inc. vs Natural Resources Defense Council, Inc., 467 US 837 (1984)…

…(Congress) can, right now, statutorily amend the APA to grant itself final approval over all proposed agency regulations, any changes in agency policy that amount to a change in regulation, or substantial reinterpretations of the law including administrative case law decisions. If Congress fails to approve the regulations, they would not go into effect. This would provide a major check on Executive power which already, in an era of divided government, enjoys tremendous power through use of the veto. It would realign the federal branches to their original framework and move us from an Executive-led nation to a Congress-led nation as originally intended.

Do read the whole article as it lays out just what the President is supposed to be doing – hint: he isn’t supposed to be using his discretion to decide whether an illegal immigrant can stay.

Getting back to Constitutional governance is crucial to the long-term health and prosperity of the United States. We can’t afford to further drift into Presidential rule until our President is more akin to a Roman Emperor than a George Washington. There is always a danger, as Republics age, that the people, weary of the political fight, will just turn power over to someone who will take charge and make the difficult decisions. That might have some success, of a sort, for a while, but the end of it is the death of the nation. Only the people, continually engaged in the political life of their nation, can ensure that the nation remains vigorous. This idea is a great way to start to restore Constitutional governance and I think we on the right should run with it.

7 thoughts on “Restoring the Executive/Legislative Balance

  1. Retired Spook November 19, 2016 / 9:57 am

    The mock Article V Convention of States held in Williamsburg in September proposed an amendment similar to what you’re talking about:

    Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the President their written declaration of opposition to any proposed or existing federal administrative regulation, in whole or in part, it shall require a majority vote of the House of Representatives and Senate to adopt or affirm that regulation. Upon the transmittal of opposition, if Congress shall fail to vote within 180 days, such regulation shall be vacated. No proposed regulation challenged under the terms of this Article shall go into effect without the approval of Congress. Congressional approval or rejection of a rule or regulation is not subject to Presidential veto under Article 1, Section 7 of the U.S. Constitution.

  2. Retired Spook November 19, 2016 / 11:21 am

    Mark, you spend a lot more time than I do on social media as well as multiple blogs and news sites. Do you see any increase in calls for, as you put it, “getting back to Constitutional governance?” Amazona and I have been having an off-blog discussion about this. I think the election was largely a repudiation of Constitutional governance in favor or someone who will just do whatever it takes to get done what his supporters want done — the same thing we excoriate the Left for except on the Right. Cruz was the only one during the primaries who constantly talked about getting back to Constitutional governance, and it just never seemed to gain any traction with a majority of voters. I’m more and more of the opinion that the vast majority of Americans either aren’t familiar with the Constitution, or don’t care what it says, or, more importantly, don’t care that the people they elect violate their Constitutional oath on a daily basis. I’m curious as to your take.

    • M. Noonan November 20, 2016 / 12:46 am

      I don’t think we’ll ever win an argument about Constitutional governance, as such – we’ll have to do it more subtly; more hammering home on the theme of freedom than Constitutionality, but the center of our argument always going back to restoring Constitutional governance. Most people these days, sadly, just don’t know much about the Constitution or it’s underlying philosophy.

      • Amazona November 20, 2016 / 1:20 am

        I think you are on the right track, focusing on freedom, but we have to learn how to tie that back in with the original intent of the document, which was to ensure as much freedom as possible by putting lawmaking as close to the people as possible. If we think about it, we can link most complaints back to having a massive and massively powerful Central Authority. Lobbyists? When you have only two Senators for a state with a population of millions, you can’t sit down and talk with one of your Senators about what matters to you, so you need to hire a lobbyist. But if the matter is something that belongs at the state level anyway, you have a pretty good chance of being able to get some face time with a state senator or representative, or at the very least being able to go to a town hall meeting.

        You don’t have to be a college lecturer to be able to say, in many conversations, “The whole Revolutionary War was about getting away from a Central Authority—at that time, the king of England—-and setting up a system where the people have more freedom and more control”.

        People aren’t stupid. They know that One Size Does Not Fit All. They know that different states have different problems and different needs. They’re just not used to thinking about it, or thinking about how to make it happen. But a lot of quickly stated ideas will resonate. Such as the fact that every agency that handles money ends up keeping some of it, so it makes a lot more sense to have agencies at the state level, removing at least one level of bureaucracy that skims millions off the top—saves money, gives more oversight, and programs are specific to the state’s needs. There isn’t any need to use twenty-dollar words or even the word “constitutional”—-just saying that is the way the country was set up in the first place and it worked a lot better when that was the way it was run will get the message across.

  3. Retired Spook November 19, 2016 / 12:50 pm

    Looks to me like Trump is on the right track.

  4. Retired Spook November 19, 2016 / 3:26 pm

    Interesting timeline of protest events since the election.

    • Amazona November 19, 2016 / 4:16 pm

      This is an interesting article, and for the most part I think it points out some legitimate concerns. The biggest is the blithe acceptance of anti-American rioters openly advocating the overthrow of the government and even the murder of the new president elect. It’s not the rioters that bother me as much as their acceptance by the public.

      One thing that jumped out at me is the belief that disrupting the public inauguration ceremony would mean Trump would not be inaugurated. For those of us who remember LBJ being sworn in on an airplane before it took off to return JFK’s body to DC, this doesn’t make a lot of sense. If there is concern about the public ceremony becoming a focal point for violence, all the government has to do is have Trump sworn in in a private ceremony—perhaps in front of Congress, if there is a desire to give it more gravitas than one with just a few people in, say, the Oval Office. An inauguration does not require a huge public spectacle, and in fact I wish we would stop doing it this way.

      Another is the belief that shutting down a lot of commerce on “Black Friday” (a term I hate and will not use except in a case like this…) would result in economic misery. There are still five or six weeks till Christmas, and there will still be shopping. This whole day-after-Thanksgiving thing is an artificial construct that seems to have taken on an identify of massive import. It’s a scam, designed to drive people into a mindless spending frenzy, and as such does add to the economy, but I’m not sure how much of this spending is in addition to what would have been spent otherwise and how much is just concentrated into this one day.

      I think we need to look at what is motivating the leaders of these uprisings, and I think that underlying it all is fear of a Justice Department that will actually work to uphold the law, staffed by people who will honor their oaths of office. The International Left has had eight years of complicity with its agendas for the United States, aided and abetted by Obama’s administration, and losing this protection has it quite concerned. The word “treason” has popped up, regarding Hillary Clinton, and while I seriously doubt that she would ever be charged with treason, there has to be some alarm about having Americans think about treason, what it means, and how it should be punished.

      They are also freaked out by losing the chance to pack the SCOTUS with even more hard-core Leftists who would continue to codify Leftist agendas into American law. And what could be more threatening to the Left than a Congress which will pass a law making it mandatory for oath-takers to honor their oaths of office, with impeachment and removal from office for those who do not? This would, if passed and enforced, gut the entire federal judiciary.

      I’m guessing that after Trump is inaugurated and we have a new Justice Department, and the FBI has a director who believes in the Constitution and the rule of law, these “protesters” will be less likely to risk arrest and prosecution for their actions.

      And this is another reason to continue the investigation into the antics of Hillary Clinton. This is an ideal forum for explaining to the American public what the laws are, why they exist, and the dangers of breaking them.

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