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ARTICLE

Voting, Accountability, and the Rise of Executive Power

Does Congress matter anymore?

NOVEMBER 03, 2010 by WILLIAM L. ANDERSON

I write this column before the elections the media trumpets as being “historic.” This is different from the “historic” elections of 2008, or the “historic” elections of 2006, but I guess they’re “historic” nonetheless.

Here’s what I want to know: Does Congress matter these days?

The passage of “historic” (there’s that word again) medical and financial legislation makes it seem the current Congress has done significant things (and significant does not mean good), but there is a catch: Congress does not pass real laws anymore as much as it cedes powers to the executive branch, that is, the president of the United States.

As we supposedly learned in civics class, the central government has three branches: legislative, judicial, and executive. They allegedly balance one another to keep any one branch from grabbing too much power and becoming a monster. That was supposed to be happening, anyway.

However, as the United States “matured” from a republic to a democracy, the landscape of political power also changed. The Progressive movement spawned not only intellectuals who believed the executive branch needed more power, but also politicians willing to upset the constitutional balance to promote “scientific” and “advanced” government.

Congress started slowly, ceding some of its regulatory powers via the Interstate Commerce Act of 1887 and then the Sherman Antitrust Act three years later. Next the United States went on an imperialist binge: the Spanish-American War of 1898 and its aftermath. In 1900, following the assassination of President William McKinley, Progressive Theodore Roosevelt, whose view of the presidency – having no real legal limits – dovetailed with the outlook of Progressivist intellectuals who reveled in the presence of a media-savvy executive, came to power and proceeded to have an activist presidency.

Modern Leviathan

The years 1913-1920 significantly set the stage for the modern Leviathan. In 1913 Congress created the Federal Reserve System, the states approved the Sixteenth Amendment to prepare for a national income tax, and direct election of U.S. senators replaced the old system of having state legislatures elect them.

Four years later Progressive President Woodrow Wilson pushed the country into World War I. Within a year the government had instituted military conscription, a government-controlled economy, and draconian laws that smashed free speech. In short the remnants of a constitutional republic had disappeared into a “might makes right” regime. Perhaps it was fitting that after the war, the U.S. government imposed alcohol prohibition, which would last until 1933.

We should not be surprised that the combination of a Federal Reserve and activist government gave us the Great Depression. During the 1930s Congress’s ceding of its powers to the executive branch only accelerated, as the New Deal swallowed the rest of the Constitution.

This process, though slowed at times (as during the Watergate scandal), nonetheless continues to the present day. Americans have fought in five wars since World War II ended, not one declared by Congress. Because Congress and the U.S. Supreme Court have vastly expanded the Constitution’s Commerce Clause to mean nearly anything Congress wishes, the federal courts, which originally were meant to play a minor role in U.S. jurisprudence, have moved front and center in our lives.

There literally is nothing in daily life that is not regulated by a bureaucracy of the federal government, from our food to what we are permitted to read. We cannot get on an airplane without being virtually strip-searched. On the environmental front, the courts have given the Environmental Protection Agency carte blanche to set its own rules, regardless of what Congress has written.

The Constitution supposedly was constructed to keep the branches of government in check, but today that is a lost cause. The executive branch operates nearly on its own, as the president even now has the power to order summary executions of Americans designated by the bureaucracy as “terrorists.” The Progressive dream is complete: Now the executive branch has literal life-or-death power over the rest of us.

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