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Congress Must Reclaim Its Role as the Primary Legislative Body

William L. Kovacs

May 2019

Congress Must Reclaim Its Role as the Primary Legislative Body

Nothing in our Constitution can be more explicit in intent and meaning than the first sentence which reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

To fulfill this Article I, constitutional mandate, Congress needs to act as an institution that both legislates and checks the powers of the Executive and the courts when those institutions legislate in ways not intended by Congress.  Such actions require an institution comprised of members who act as fiduciaries to the Constitution and who are loyal to the institution in which they serve.  At all times, these members must be willing to provide the checks on the other branches of government to ensure Congress is the primary lawmaker.

When members of Congress become more loyal to the political parties of which they are members than to the Congress to which they are elected, Congress morphs from a constitutional bulwark into a political association, which is nothing more than a corporation whose mission is to control the government of the United States.  Even more insidious is when members of Congress and the Executive are of the same party. In this situation members of Congress generally give all loyalty to the Executive, thus abdicating their primary role as a check on the powers of the other branches of government.

Notwithstanding the declarative constitutional statement on the powers of Congress in Article I of our Constitution, we find ourselves living in an age in which Congress has delegated its legislative powers to the federal administrative state to determine what Congress intended. With such delegated authority, administrative agencies impose by regulation the intent of the Executive rather than the intent of Congress.

Compounding this travesty, the federal courts, for decades, grant great deference to the decisions of the administrative state. In cases in which a statute is vague, and the agency fills in the blanks, the court views the agency action proper since the court considers the agency as the expert. In other situations where the record is large, complex or in need of understanding science or economics, the court upholds agency regulations if the agency can point to any part of the administrative record that establishes the agency decision rational, notwithstanding the intent of Congress.

Moreover, the courts on more than a few occasions legislate by issuing orders that expand laws in ways never intended by Congress.  These actions place our Congress in a state of helplessness unless it can muster a super-majority of its members to overrule court decisions; an almost impossible task.

Once in this state of helplessness, Congress has only one power to control the courts or administrative state; that is the power of the purse.  Under our Constitution “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  If a party is in control of the Executive and both houses of Congress, the will of the Executive generally prevails. However, if a minority party controls one house of Congress, it can withhold the monies needed to run the parts of the administrative state it believes are acting improperly. While withholding the funds to operate the administrative state is viewed by many as abhorrent; it is the only constitutional power that Congress can exercise that cannot be blocked by the other branches. If Congress cannot withhold monies to fund the administrative state out of fear of political backlash, then it is a useless power for controlling the administrative state.

To address this failure, we citizens must demand that every member of Congress pledge to support and defend the institution of Congress; not the political party of which it is a member.  Only by making and keeping such pledge can the government official act as a check on the other branches of government, as intended by our Constitution.  If a person seeking election to Congress cannot make and keep this pledge, citizens should withhold their vote from that person, which is our real power to control the Kakistocracy.

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