Thursday, February 19, 2009

Who Needs Congress?

Jerry Taylor makes the point:
Perhaps the most striking thing about Obama's proposed housing plan is this nugget from The New York Times: "Except for the provision that empowers bankruptcy judges, almost all of the other elements can be enacted by Mr. Obama without further action by Congress."

How have we gotten to the point where hundreds of billions of dollars can be spent and major initiatives undertaken merely on presidential whim? Answer: Congress has delegated so much power to the executive branch that the old rules we learned in high-school civics are now null and void. Those old rules, remember, held that the legislature made laws and the president executed laws. Now, Congress routinely delegates massive amounts of broad law-making authority to the president in order to avoid responsibility for anything. For a book-length treatment of this, see David Schoenbrod's Power Without Responsibility: How Congress Abuses the People Through Delegation. (links and emphasis in original)
It is not so much the fact that Congress delegates, since to a certain extent it is necessary since Congress itseld can barely agree as to what the law should be in a general sense, let alone what the fine details would have to be with regard to implementing the law. So I don't have a problem with delegation per se.

In this case, I have a problem with the scope of the delegation and that actual subject matter. If Congress wants to delegate to the Department of Agriculture the task of defining "organic" that is one thing. But here Congress has essentially delegated the power to determine how some $275 billion dollars will be spent. The last I checked, the power to appropriate money was clearly given to the Legislative Branch (and I haven't heard of a Constitutional Amendment otherwise). So Congress has essentially said to their Savior, "spend this massive chunk of the taxpayers in anyway you see fit. Pay no mind to the rules that say we, the Congress have to say how to spend the money. That is just a constituional inconvenience that we are going to care about."

Does the Congress routinely delegate some spending authority to executive branch agencies? Yes, but there are always guidelines. For example, if Congress says to the Pentagon, you have X number of dollarst to buy a new tank, the Pentagon usually has the authority to decide which tank to buy from which contractor.

With this housing money, the White House will essentially determine not only how to spend the money, but whether to spend the money and in what ways. That is too much power, I don't care how desperate the crisis is.

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