Moribund Congress

Article excerpt


It has meekly surrendered to the President its pivotal lawmaking and oversight powers. Absent a miracle, the nation is destined to lose its time-honored checks and balances for a dominating and secret executive.

Congress has yielded to the president the decisive voice over war and peace. It customarily enacts open-ended authorizations to employ military force - for example, the Authorization to Use Military Force (AUMF) passed after September 11, 2001. The AUMF empowered the president to conduct war against international terrorism forever - putting the nation in a permanent state of war at the president's discretion. Since Pearl Harbor, Congress has never balked at supporting initiation of war or the use of military force by the president: Korea, Vietnam, Panama, Kuwait, Afghanistan and Iraq. The idea that Congress now would prohibit President Bush from using military force against Iran is preposterous.

Congress has delegated to the president sweeping discretion to freeze assets or to block financial transactions under the International Economic Emergencies Power Act of 1978 (IEEPA). President Jimmy Carter invoked IEPPA to freeze Iranian assets after the embassy hostage crisis. President Bush has relied on IEPPA to address perceived emergencies in Iraq, Syria and Lebanon. Congress has also endowed the president with virtually unreviewable authority to designate persons as foreign terrorists and organizations as foreign terrorist organizations. A designation freezes the bank accounts of the listed organization and makes providing any material assistance criminal.

The Senate has yielded its authority to require ratification of treaties by two-thirds vote by permitting the president to resort to simple legislation to implement major foreign trade or sister foreign policies. The World Trade Organization, for instance, was enacted by legislation despite its surrender of U.S. sovereignty over foreign trade disputes to international tribunals.

The legislative power of Congress has been punctured or surrendered in several respects. \PA* First, Congress routinely delegates to executive agencies authority to promulgate legislative rules to flesh out opaque regulatory statutes. These agency rules are presumptively valid under the Supreme Court's Chevron doctrine. Their number and importance dwarf the number and importance of congressionally enacted laws. \PA* Second, Congress has acquiesced in signing statements that declare the president's intent to disregard provisions of laws he has signed because he believes they are unconstitutional. Signing statements are indistinguishable from absolute line-item vetoes held unconstitutional in Clinton vs. New York. They result in enforcement of laws Congress did not enact because members approve all provisions in a bill, not the expurgated editions created by signing statements. \PA* Third, Congress has declined to repudiate President Bush's claimed authority to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) or any other law that would regulate collection of foreign intelligence. …