...On taking office, members of Congress must “solemnly swear” that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic” and “bear true faith and allegiance to the same.” Yet over the past many decades, Congress has been systematically engaged in undermining both of that document’s most fundamental safeguards of our individual freedoms. Americans, however, appear oblivious of that fact and of the seriousness of the consequences if left unchecked.
During our first 180-odd years, Washington largely observed those safeguards. But with the advent of Lyndon Johnson’s Great Society, Congress began a wholesale assumption of the states’ responsibilities. As I explain in my 2014 book Saving Congress from Itself, it has done so through a proliferation of federal programs that offer states and their subdivisions grants of money for purposes that are the states’ exclusive concern.
These grants come with the most detailed instructions on how the money is to be used. Out of deference for the Tenth Amendment, the Supreme Court has stipulated that Congress may not coerce the states into accepting them. Fifty years of experience, however, has demonstrated that states find it enormously difficult to decline what is viewed as free money from Washington, however onerous the attached conditions. Thus the practical effect of the Court’s decisions has been to empower Congress to bribe the states into accepting Washington’s directions on matters that remain the states’ constitutional responsibility.
Members of Congress have become addicted to these programs because they deal with matters that are of the most immediate concern to their constituents: matters such as housing, schooling, job training, potholes, you name it. Therefore, their creation and the securing of grants offer members the easiest way to rub elbows with voters and generate the favorable headlines that will assure their reelection. As a consequence, whereas those programs distributed $24 billion in 1970 when I was elected to the Senate, by 2015 that figure had reached almost $641 billion, or one-sixth of total federal spending that year, and all for purposes that are none of Washington’s business.
The result has been an avalanche of regulation-ridden programs that now provide federal subsidies for virtually every activity in which states are engaged. They have thus converted the states in too many ways into mere administrators of programs created in Washington and overseen by bureaucrats who are the furthest removed from where the money is to be spent.
In short, those programs have effectively nullified the Tenth Amendment. But that isn’t the only way that Congress has been undermining the Constitution’s safeguards. Over the years it has also been chipping away at its separation of powers. The Constitution provides that “all legislative Powers herein granted shall be vested in a Congress of the United States.” Thus Congress is the sole legitimate source of federal laws. Responsible law writing, however, can be a difficult art, and the more complex the legislative details, the greater care is required to ensure that the finished product does neither more nor less than Congress intended.
As I say, this is demanding work. So Congress has fallen into the habit of delegating ever more essentially legislative details to executive agencies that in turn produce the detailed regulations that give congressionally enacted laws their effect. In doing so, the agencies tend to resolve statutory ambiguities in ways that will meet their own objectives, which may or may not coincide with those Congress had in mind.
1 comment:
Great informative article
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