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The Constitution that the House reads today doesn't empower bureaucrats to make law.

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Outsourcing Democracy

The Constitution that the House reads today doesn’t empower bureaucrats to make law.

The 112th Congress opens today with a reading of the Constitution in the House of Representatives. Hopefully, the lawmakers pay special attention to Article 1, where the Founders outlined the powers of Congress. These include coining money, declaring war, and making law.

The past century or so has witnessed Congress outsource these and other powers to the Federal Reserve, the regulatory bureaucracy, the executive branch, and the courts. This is bad news for the American people, whose direct role in electing congressmen stands in contrast to their indirect role in electing presidents and approving judges—let alone their impotence to hold anonymous bureaucrats accountable. We have become more a government of, by, and for people unknown to the people

Bypassing the democratic process has become more popular within the Obama administration as the Obama administration has become less popular within the country.

The American people rejected the idea of saving the feds money by incentivizing end-of-life-counseling, the so-called “death panels.” Rather than accept the judgment of Congress, the Obama administration quietly slipped the rejected measure into the federal code. Though apparently decided upon in early November and included in the Federal Register published in early December, the rule buried beneath a byzantine labyrinth of regulations was not reported until Christmas Day by the New York Times.

How might the controversial incentive be implemented? A University of Michigan doctor offered a hypothetical counseling situation to the Times: “If you have another heart attack and your heart stops beating, would you want us to try to restart it?” One can see why the Obama administration would cover-up “health care” policies perversely dedicated to saving money at the cost of lives.

The stimulus depressed the economy. The appetite in the Congress for a second stimulus was unsurprisingly nil. But within the Federal Reserve, the notion of a monetary stimulus to supplant the fiscal stimulus was popular. So, the Federal Reserve decided in late October to print $600 billion dollars. The Constitution didn’t award them such powers. But they exercised them nevertheless.

The Democrats, despite their control of the Congress and the presidency, couldn’t pass so-called cap-and-trade. So, the Environmental Protection Agency is imposing new limits on carbon emissions. The unelected bureaucracy decrees a decrease of 5 percent of 2005 emissions by 2020. One can debate the efficacy of legislation to combat global warming. Debating whether that legislation should be devised by duly elected lawmakers or by unelected usurpers is a slur upon republican government.

These issues were all raised before the elected representatives of the people and rejected by the elected representatives of the people. There was no stomach for end-of-life counseling, a second stimulus, or cap-and-trade. Yet, the Obama administration refused to take “no” for an answer.

Given that the president circumvented Congress when his party controlled it, his willingness to sidestep the process now that Republicans have upped their numbers will likely be much greater. Expect executive orders, bureaucratic legislation, and judicial fiat to implement the Obama agenda that lawmakers, and their constituents, increasingly balk at. This is to say nothing of the Constitution’s objections to the substance (and not just the process) of the administration’s program.

One would be tempted to see Congress as the victim of all this usurpation if Congress hadn’t itself outsourced its powers to other entities. Since the establishment of the now-defunct Interstate Commerce Commission 124 years ago, Congress has given its imprimatur to a slew of alphabet-soup agencies—FDA, SEC, FCC, etc.—with quasi-legislative powers. But the people delegated the lawmaking function to Congress. It wasn’t theirs to give away.

Changing its constitutional responsibilities is not one of Congress’s powers. The people entrusted legislators to exercise these powers, not to hand them over to entities unaccountable to the people. A century of lazy, cowardly, and masochistic Congresses have engineered Congress’s own irrelevance.

One can no longer say that lawmaking by the unelected is unprecedented in America; one can still say that it is unconstitutional.

The problem of America 2011 is the problem of America 1776: government governs without the consent of the governed. The solution then as now is Constitutional government. 

A good first step is for congressmen to read the Constitution. An even better step would be for the president to do so too.

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Written By

Daniel J. Flynn is a columnist for HUMAN EVENTS and the author of Blue Collar Intellectuals: When the Enlightened and the Everyman Elevated America (ISI Books, 2011).

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