The making of the Congressional bed

From Why Trump will win the wall fight by Jonathan Turley. Forget the wall. Turley is focusing on an institutional issue about which I have been long concerned, the gradual relinquishment from Congress of many of its powers to the Executive, and to an even greater degree, to the administrative state.

It insulates Congressmen from responsibility for accomplishing things. And it makes a mockery of our democracy by disabling one of the most important checks-and-balances.

There may be a furor from Democrats over Trump's use of executive order and state of emergency, but it is no different than what Congress has been doing for the past thirty years - abandoning their responsibilities. Reliance on the regulatory state, executive orders and circumventions of Congress became endemic under Obama but they were to some degree simply an extension of Congressional inclinations for the prior couple of decades.

We all should have been concerned about this delegation of authority to unaccountable agencies all along but it makes a Congressperson's job so much easier to kick-the-can down the road and to delegate to others. I would hope that their outrage that Trump is doing what others have done before would be sufficient for them to pass legislation (their job) bringing back power to Congress and oversight of agencies. But I suspect they prefer the emotional tantrums and antics over actually doing the heavy lifting of legislating.

From Turley.

Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” He was expressing the limited role of courts in challenges to federal law. It is not the task of judges to sit as a super legislature to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.

In the matter of the border wall, Congress could not have been more clear where it was heading. It put itself on the path to institutional irrelevancy, and it has finally arrived. I do not agree there is a national emergency on the southern border, but I do believe President Trump will prevail. This crisis is not the making of Donald Trump. This is the making of Congress.

For decades, Congress frittered away control over its authority, including the power of the purse. I have testified before Congress, warning about the expansion of executive power and the failure of Congress to guard its own authority. The two primary objections have been Congress giving presidents largely unchecked authority and undedicated money. The wall funding controversy today is a grotesque result of both of these failures.


Start with the National Emergencies Act of 1976. Presidents have long declared emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous seen in the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared that the federal seizure of steel mills during the Korean War was unconstitutional because Congress had never granted President Truman that authority.

However, Congress later gave presidents sweeping authority under the National Emergencies Act of 1976. While this law allows for a legislative override by Congress, the authority to declare national emergencies is basically unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate. At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations.

This is why President Obama was able to go to war in Libya without a declaration and fund the entire war with billions of undedicated funds. Neither House Speaker Nancy Pelosi nor most of the current Democratic leadership made a peep of objection at this. But when it comes to the wall, Democrats have indicated they will rely on the ruling in House of Representatives versus Sylvia Burwell, in which the court declared the House of Representatives had standing to sue over executive overreach and that Obama violated the Constitution in ordering the payment of billions to insurance companies without authorization from Congress.

The rest of the piece is interesting but it is in the same vein. Congress made this bed. Congress demonstrates no inclination to make it better. Any bewailing of their having to sleep in the bed they made is either theatrics, ignorance or hypocrisy.