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Legislative power and  the constitution

By Bruce Walker
web posted July 22, 2013

The "decision" by President Obama to defer the implementation of parts of Obamacare until after the 2014 midterm elections and the "decision" by the Supreme Court soon before that to invalidate the Defense of Marriage Act both reflect the absurd contortion of the Constitution from a document and a system of governance in which Congress, alone, makes laws (or repeals laws.) 

The duty of the president is to faithfully execute the laws passed by Congress, whether he agrees with those laws or not.  The limited role that the president has in the process of federal lawmaking is his veto, which is overridden by 2/3 of both houses of Congress.  If he does not veto a bill or if his veto is overridden, that limited role is finished. 

Early presidents did not even believe that a president had the right to veto congressional bills which he thought bad law but only bills which would be unconstitutional laws.  The president cannot introduce a bill in Congress or decline to enforce a law he feels is bad.  He is an officer, very much in the sense that a policeman is an officer, when police chiefs decide to selectively enforce laws regarding drugs, gambling and prostitution, then they become instruments of organized crime – and that is only a slight exaggeration in the case of Obama and the new healthcare law.

The role of the federal bench is even more circumspect.  The Constitution gives it no power to determine that a federal law is unconstitutional and the usurpation of that authority by the Supreme Court is simply a hijacking of legislative power (or, in this case, the power to repeal, which is just as much a legislative power and not a judicial or executive power.)   When federal judges pander to groups by overturning laws passed by Congress, it is hard to view that as anything less that corrupt government. 

Does this mean that the framers of the Constitution were indifferent to the dangers of unconstitutional legislation?  No, of course not, but the duty to determine whether a proposed federal law is constitutional or not is the legal and moral obligation of the members of Congress themselves, who have the same oath to support and defend the Constitution as presidents or Supreme Court justices.

So when Congress passed the Defense of Marriage Act and the Patient Protection and Affordable Care Act, each member, in deciding how to vote, was obliged to look closely at the Constitution and to independently determine whether he felt it was constitutional or not.  Who thinks this really happens anymore?

The Constitution, in large part, is a document intended to limit federal legislation to those areas in which the states, in confirming that new form of government, intended to limit federal power.  Not only do we now have laws passed which President Obama, despite his oath of office, blatantly asserts he need not support – that is bad enough – but we have the dangerous and surreal delegation of powers of legislation to federal cabinet officers and to independent regulatory agencies (which often also have the power to administer and even adjudicate cases involving the regulations it makes.)

The Supreme Court, whose role regarding the Fourteenth Amendment with its Due Process and Equal Protection clauses are the source of nearly every sort of federal judicial mischief these days including striking down the Defense of Marriage Act, which is never mentioned once in the language of the Fourteenth Amendment.  What does the Fourteenth Amendment say about the Due Process and Equal Protection clauses are to be
implemented?  Section 5 of that amendment states that:   "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  This means Congress says what violates those clauses of the Fourteenth Amendment and that Congress defines the remedies for violations of the amendment.

The power to make laws was considered, by far, the most important federal power.  In the beginning of our new form of government there were hardly any executive offices at all and no independent regulatory agencies.  There were almost no federal courts and the jurisdiction of those courts were very circumscribed by Congress, as it has the power to do.

One grand reform which conservatives might consider championing is a single federal bill to strip from the president, from all federal courts and from all independent regulatory agencies all power to make or to invalidate or delay federal laws.  Returning these non-legislative branches of the federal government to their assigned and limited roles would do a great deal to unraveling the ghastly mess which the federal government has become. ESR

Bruce Walker is the author of book Poor Lenin's Almanac: Perverse Leftists Proverbs for Modern Life and a contributing editor to Enter Stage Right.






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