accountabilitybloke

A constitutionally “responsible” Congress

After years of studying and writing about the Constitution, I’ve become somewhat attached to that instrument, not because it reflects the genius of some mythical “founders”, but rather because it represents the enduring nature of political bargains struck in the heat of summer by a bunch of “interesting” pols who just wanted to get the hell out of Philadelphia.
I have also come to appreciate the degree of respect paid to the document, and am always thankful that most of those who study and “practice” it appreciate its complexities and subtleties — at least most of the time.
Some recent events have me concerned, however. First is the indifference and impatience demonstrated by those — the Dick Cheyneys and John Yoos of the right and a growing number of commentators on the left — who think Congress is irrelevant and there to be circumvented. As I point out to my students, there is a reason that Congress is the subject of the first Article of the Constitution, and even more significant that all the substantive powers of the national government are placed in that Article — and therefore in Congress. They are more than a hurdle for the president to overcome or circumvent. In fact, with the exception of the ambiguous phrases “executive power” (which did not mean “CEO” at the time of the writing) and commander-in-chief, there is little doubt that what the president can do is determined by provision of the law as passed by Congress. Proposals or strategies designed to circumvent Congress would be — and should be — unconstitutional. Period.
The problem is that many of those who advocated emasculating Congress are members of Congress — and we have seen this in one form or another for most of the 20th century as Congress gleefully outsources its responsibilities (in law school terms, delegates it authority) to others. The latest is the so-called Independent Deficit Commission — a bad idea that has popular legs and might actually be enacted. What is being advocated is more than a delegation of authority which (pre-FDR) would have never been considered viable, constitutional or wise. But wisdom is in short supply in Washington at the moment…..
What seems incongruous is that this proposal is being considered just as we see a push in the Senate to emasculate the Fed — and for good reason. The Fed is an independent monetary policy commission that has used it authority over the flow of money through national banks to leverage a deregulatory policy agenda that is clearly at the heart of the current financial crisis. It is assumed that independence and autonomy was necessary for the Fed to control monetary policy as it has, but the boundaries of that authority knows no bounds in the wrong hands. Compare (as many now are) the inflation hawk decisions of Volcker (where the model worked) with the policies under Greenspan who was not as concerned with do the job the Fed was authorized to do as he was with freeing up the financial markets. We are living through the results….
What we need is a movement for a responsible Congress, not one focused on being responsible to public opinion or the interests of constituents, but rather responsible to its constitutional role…..

After years of studying and writing about the Constitution, I’ve become somewhat attached to that instrument, not because it reflects the genius of some mythical “founders”, but rather because it represents the enduring nature of political bargains struck in the heat of summer by a bunch of “interesting” pols who just wanted to get the hell out of Philadelphia.

I have also come to appreciate the degree of respect paid to the document, and am always thankful that most of those who study and “practice” it appreciate its complexities and subtleties — at least most of the time.

Some recent events have me concerned, however. First is the indifference and impatience demonstrated by those — the Dick Cheyneys and John Yoos of the right and a growing number of commentators on the left — who think Congress is irrelevant and there to be circumvented. As I point out to my students, there is a reason that Congress is the subject of the first Article of the Constitution, and even more significant that all the substantive powers of the national government are placed in that Article (Section Eight) — and therefore in Congress. They are more than some “hurdle” for the president to overcome or circumvent. In fact, with the exception of the ambiguous phrases “executive power” (which did not mean “CEO” at the time of the writing) and commander-in-chief, there is little doubt that what the president can do is determined by provision of the law as passed by Congress. Proposals or strategies designed to circumvent Congress would be — and should be — unconstitutional. Period.

The problem is that many of those who advocated emasculating Congress are members of Congress — and we have seen this in one form or another for most of the 20th century as Congress gleefully outsourced its responsibilities (in law school terms, delegates it authority) to the president, independent agencies, and others. The latest is the so-called Independent Deficit Commission — a bad idea that has popular legs and might actually be enacted. What is being advocated is more than a delegation of authority which (pre-FDR) would have never been considered viable, constitutional or wise. But wisdom is in short supply in Washington at the moment…..

What seems incongruous is that this proposal is being considered just as we see a push in the Senate to emasculate the Fed which, when oyu think about it, is an Independent Monetary Policy Commission. The anti-Fed moves are wrranted. As an independent monetary policy commission, the Fed (mainly under Greenspan) has used its authority over the flow of money through national banks to leverage a much more significant deregulatory policy agenda that is clearly at the heart of the current financial crisis. It was rightly assumed that independence and autonomy was necessary for the Fed to control monetary policy as it has, but the boundaries of that authority knows no bounds in the wrong hands. Compare (as many now are) the inflation hawk decisions of Volcker (where the model worked) with the policies under Greenspan who was not as concerned with doing the job the Fed was authorized to do as he was with freeing up the financial markets. We are living through the results….

What we need is a movement for a Responsible Congress, but not one focused on being responsible to public opinion or the interests of constituents, but rather responsible to its constitutional role….

November 12th, 2009 Posted by mjd | accountabilitybloke | no comments