Kudos to the Editorial Board of the New York Times for putting aside the likely preferences of most of their readership and charging President Biden to, “Ease Up on the Executive Actions, Joe.” The piece argues, on constitutional and practical grounds, that presidents must work with Congress to establish legislation to carry out their agendas, rather than seeking to do so through executive actions.
While well-intentioned, the piece is flawed and self-contradictory, beginning with its subtitle, which asserts Biden, “is right to not let his agenda be held hostage.”
No, he isn’t.
The premise underpinning this statement, shared by much of the public, is that a new president’s policy agenda should be enacted by Congress based solely on the president’s election. This is backwards. The idea Congress is merely a rubber stamp for the will the executive is straight out of Hobbes’ Leviathan and foreign to the U.S. Constitution. Rather, the Constitution presumes legislation originates in Congress, exercising only those powers granted it, with the president’s role to either assent and execute, or veto.
While politicians love to throw around Rousseauian language like “will of the people,” the founders clearly rejected Rousseau’s vision of “the total alienation of each associate, together with all of his rights” to some “general will.” Our system is based upon the idea most natural rights are inalienable, no matter how large a majority seeks to infringe them.
The Constitution presumes there is no “agenda” to be pursued by either Congress or the president, but rather a narrow list of powers to be exercised by Congress in legislation and the president in execution. Whether the government should be involved in new areas is beyond the powers granted to either branch. They are reserved to the amendment process, which is difficult by design.
It has become routine for presidential candidates to promise sweeping changes they have no power to deliver. This has led the people to increasingly believe merely electing the presidential candidate of their choice should result in those changes. When it doesn’t, they blame Congress for “not getting anything done.” This is also backwards.
When a bill is proposed in Congress and voted down, Congress is indeed “getting something done.” If there were anything at all to the idea of a will of the people, that will would be found in the diverse opinions of the Congress, not the unitary will of the executive. The rejection of legislation suggested by the president is as representative of the people as its passing.
To comprehend the reason for the bitter divisiveness in American politics and its increasing propensity for violence, one should not only look to the vast expansion of centralized power over the peoples of vastly different cultures within the American federation, but to the relentless migration of power from the legislative branch to the executive. When one’s whole way of life could turn on the election of one man or woman to the presidency, that election takes on an outsized importance even to those normally disinclined to politics. The legal instability inherent in executive supremacy only adds fuel to the fire.
No, Congress is not a “better” way to legislate. It’s the only way. And for all the talk of defending democracy, a true belief in our republican system would respect the nay votes equally to the yeas.
Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.