perfidy

I've run across two interesting comments on the US Congress, neither of which are very flattering. The first is from John Derbyshire of the National Review:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

(My italics.) So in a Case not "affecting Ambassadors" etc. — let's say, oh, a case in which some citizens have chosen to dispute the ancient and customary definition of marriage — the Supreme Court has jurisdiction only if the Congress has not declared that particular Case an Exception under the aforementioned Article, and if Congress has made explicit Regulations declaring that the Court does indeed have such jurisdiction. Hmmm. So this issue I have been reading so much about, of renegade federal judges legislating from the bench, is really not an issue at all, since Congress could just forbid them to take the relevant Cases! Does anyone in Congress know this? Why don't they act on it?

The second is from Marginal Revolution, where Tyler excerpts from this Washington Post article:

In fundamental ways that have gone largely unrecognized, Congress has become less vigilant, less proud and protective of its own prerogatives, and less important to the conduct of American government than at any time in decades. "Congress has abdicated much of its responsibility," Nebraska Sen. Chuck Hagel said in a recent conversation. "It could become an adjunct to the executive branch."

...Though it occasionally resists an executive-branch proposal, Congress today rarely initiates its own policies. Few members speak up for the institutional interests of Congress. "The idea that they have an independent institutional responsibility, that the institution itself is bigger than the individuals or the parties, doesn't occur to the bulk of [members] for a nanosecond," said an exasperated Norman Ornstein of the American Enterprise Institute, a longtime student of Congress.

It occurs to Rep. David Obey of Wisconsin, the ranking Democrat on the House Appropriations Committee. He said that the House has given up the meaningful exercise of its powers by largely forfeiting its oversight role and abandoning all discipline on the federal budget.

These two comments take the same problem from different sides. The Post article points out, correctly, that the relative strength of the three branches of government have waxed and waned over the last two centuries. The Supreme Court was almost non-existent until Marshall became Chief Justice. Congress was far more important than the President at the beginning and end of the 19th Century. But over the last quarter century and more, Congress has been on the wane and not so much due to encroachment from the other two branches, but because Congress has willingly surrendered its constitutionally granted powers.

Both liberals and conservatives have pilloried the Supreme Court for its intrusions into politics. Judicial activism and federalism have been rallying cries for the right, and the left has advanced many of its goals through court rulings. That the courts are able to do this, though, is only because the Congress allows it. A pernicious trend over the last half-century is Congress’ increasing unwillingness to consider the constitutionality of its own legislation. Rather than think difficult thoughts like, “Does the Constitution allow us to pass this law?” the Congress passes anything that passes through its airy head, confident that the Supreme Court will sort it all out. Over a long enough stretch of time, this becomes habit – and the SC comes to believe that these sorts of rulings are its primary focus.

And as Derbyshire pointed out, the Congress has important and wide-ranging powers to regulate the courts, and to decide what matters are for political consideration by the elected legislature, and which are appropriate for judicial review. Most of the recent conflicts on the big issues have been between the executive and the judicial branch, with Congress playing dead in the middle, hoping that no one will notice that they are doing nothing to help solve the problem.

By passing whatever laws they see fit, and leaving all considerations of constitutionality to the courts (the best recent example is campaign finance reform) Congress has departed significantly from the letter and intent of the constitution. Aside from the departments of defense, state, and the treasury; how many of the activities of the executive branch are authorized by the constitution, beyond vague handwaving at the commerce clause?

Which brings us to an even greater abdication of responsibility. Congress is granted the exclusive power by the constitution to pass laws, levy taxes, declare war, and so on. However, most of the laws that affect our day-to-day lives are not actual laws passed by Congress, but rather federal regulations written by bureaucrats in the executive agencies and departments. Congress has ceded a large part of its lawmaking power to the executive branch, and it has done so consciously.

Similarly, the War Powers Act in large part cedes the constitutional responsibility to declare war to the executive. While the President has traditionally (and rightfully) had a fair degree of leeway in this regard, explicitly giving up the right to in effect declare war is troublesome.

Congress no longer performs the kind of oversight that is their primary responsibility. The President and the executive branch exist in large part to “take care that the laws be faithfully executed.” The most notably, the Congress has failed to exert proper oversight in budgetary matters. But this laxity spreads over pretty much every area that the Constitution puts in their care. And as the Post article notes, rarely do we see any initiative arising from Congress – almost every major issue comes from the President or the courts.

If we have an imperial presidency, it is in large part because we have a weak and vacillating Congress. If we have overreaching activist courts, it is a natural result of Congressional abdication of power. And this state of affairs seems unlikely to change in the near future.