Consider This a Warning: Congress Abdicates to the President

Thomas Warns*

The United States government is beset by a crisis in leadership. The simplistic answer often volunteered in the media is that hyper-partisan behavior in Congress (which is often blamed on Republicans) has prevented the federal government from getting anything done. While partisan behavior has always been a gridlock-inducing agent, a far more serious set of intertwined problems are present that will have far worse long term consequences: the abdication of legislative power by Congress and subsequent assumption of increased executive power by the President.


This trend is not entirely unique to our current government; the reach of the federal government has been expanding since the beginning of the Progressive Era, through the New Deal, and has only continued into the present day. But the abdication of power by Congress seems far less common (it goes against human nature to surrender your power), and has been on display recently with disastrous results. The Wall Street Journal recently wrote about the latest rewrite of the Affordable Care Act perpetrated by the executive branch:

It seems Nancy Pelosi was wrong when she said "we have to pass" ObamaCare to "find out what's in it." No one may ever know because the White House keeps treating the Affordable Care Act's text as a mere suggestion subject to day-to-day revision. Its latest political retrofit is the most brazen: President Obama is partly suspending the individual mandate.

The White House argued at the Supreme Court that the insurance-purchase mandate was not only constitutional but essential to the law's success, while refusing Republican demands to delay or repeal it. But late on Thursday, with only four days to go before the December enrollment deadline, the Health and Human Services Department decreed that millions of Americans are suddenly exempt.

The White House’s neutering of the individual mandate is ironic considering the hysterical cry that emanated from the left-wing media following Republican attempts to change or repeal the law in September and October. Perhaps the most memorable quote was from comedian Jon Stewart, who shrieked “It’s a f***ing law!” while eviscerating the Republicans who opposed it. Of course, Jon Stewart ignores the fact that bad and/or morally wrong laws can be passed, but if his argument holds any weight in regards to Congressional Republicans, it should be even more potent when used against President Obama, who has already repealed or amended numerous sections of his signature healthcare law.

The executive branch has always enjoyed discretion in the enforcement of laws, but the changes unilaterally announced by the Obama Administration – the suspension of the individual and employer mandates, the deadline delays, the protections for Congressional staffers, and the one year extension for “grandfathered” plans – are far beyond an exercise of discretion; President Obama has become a one man legislature. Instead of going through the proper constitutional channels for making laws, he is announcing whatever changes he deems necessary; he has replaced open public debate and voting over policy decisions in Congress with press conferences announcing the changes he drafted behind closed doors. The President’s exercise of the legislative power vested to him nowhere in the Constitution was also evidenced in 2012 when he signed an executive order which basically made parts of the DREAM Act a law, despite the fact that Congress did not pass it.

Equally implicit in this are the members of Congress who allow the President to get away with this. The political motivations for their behavior are clear. Congressional Republicans are content to trumpet the failures of Obamacare and watch as the President continues to compound mistake after mistake with his executive “fixes.” They would like to pass legislation repealing or replacing huge chunks of the law, but can’t get by Congressional Democrats. Many Democrats meanwhile are cooling to Obamacare publicly with the 2014 elections approaching, but must also walk a tightrope which appeases the liberals who still support it while distancing themselves from it as many moderates and millennials turn against it. If President Obama wants to take responsibility for both the failures of Obamacare as well as the feeble attempts to fix it, most Democrats don’t mind.

In the long term however, neither party in Congress is doing themselves or the country a favor by refusing to defend their exclusive legislative powers. Voters have an opportunity to check the President’s power once every four years, but Congress is most capable of defending its authority under Article I of the Constitution from Presidential encroachment. In their wisdom the Framers of the Constitution established a limited government with separated powers and checks and balances; if one branch surrenders its powers to another branch, the balance is upset, powers are no longer separated, and our Republic will look less democratic and more autocratic. If you thought modern day Presidential elections were a big deal, imagine the money and attention they will command when they are for the position of elected king. And imagine what havoc one man could wreak on our precious freedoms with all that power. The NSA could end up being remembered as a pleasant dream compared to the nightmarish developments that would follow. 

*Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."