Tuesday, September 18, 2007

Expansive agency power is...the President's fault??

Professor Tamanaha has a post over at Balkinization in which he takes a critical view of the President's excercise of power via that mysterious "fourth branch" of our government: the agencies. He reminds us that "all legislative power" is vested in Congress, leaving exactly no power for the President to make law. He seems to imply that the presidency, and Bush in particular, has somehow usurped lawmaking power for itself. And this has undermined our system of democracy, especially since many presidents tend to abuse their power by filling agencies with their cronies at the eleventh hour.

I couldn't help but feel that I was being hoodwinked. Congress, of course, is responsible for establishing agencies, not the President. And, under the Constitution, the President has a helluva lot of discretion in staffing the agencies as he sees fit. Tamanaha complains that the President is able to essentially skirt the democratic process in the way he staffs the agencies with those who would dutifully fulfill his policies, with basically no democratic oversight.

But this is not a failing of the President. The Constitution establishes three branches, each carefully interconnected and interdependent, and each with unique checks on the others. The Framers did not depend on politicians' moral fiber or sense of homage to lofty principles of democracy. This was the very point of the famous Federalist 51: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

The point? Our Constitutional strictures on what Congress, the President, and the Court can each do, are not there to be a 200-year-old wet blanket to the neat new federal programs we'd like to roll out. They're there precisely because men (not angels) need well-defined boundaries to their power, otherwise men (not angels), would feel no compunction about abusing their power.

If you don't like what a politician does, vote him out. If you don't like what a politician can do, then your beef is with the Constitution. Don't like that the President is the Commander-in-Chief of the military? Neither Bush nor any other president gave himself that power--it derives from the Constitution. Don't like that the states don't have any power over immigration? The Congress doesn't decide that--the Constitution grants Congress plenary power over immigration.

Of course, in the case of agencies, which don't actually have any real Constitutional justification, you can thank big-government-progressivism and the giant Stay-Puft-marshmallow-man of a government we've now got because of it. The notion that principles of democracy can be found in that sticky mess really is, to borrow a line from Tamanaha, "convincing only to theorists who prefer abstraction over reality."

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