Republicans Restore the Fight for Separation of Powers

House Republicans introduced the fourth installment in their six-part agenda in an event in the Capitol’s Statuary Hall on Thursday. The plan takes aim at the “fourth branch,” the regulatory state which has accumulated powers of all three branches – “to make, enforce, and interpret the law.”

Somewhere, Justice Scalia is smiling. The late justice was a stern advocate for the principle, which he saw as a critical ingredient to the Founders’ recipe for democracy, and believed it to be a bulwark against government tyranny.

“This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution,” Scalia writes in Plaut v. Spendthrift Farm.

Of course, Scalia was far from the first to recognize the importance of the principle. Indeed, the Massachusetts Constitutions, which predates the federal Constitution, states with clarity that “the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.

“[T]o the end,” the document continues, “it may be a government of laws and not of men.”

The principle was equally important to the federal framers. The Constitution’s primary author, James Madison, wrote in Federalist No. 47, that “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Perhaps more to the point, Madison argued that the “accumulation of all powers, legislative, executive and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

But at some point the history of the separation of powers became just that…history. Over time, its sense of urgency eroded as Congress slowly ceded its powers to the Executive Branch, which was more than happy to take them.

“The people granted Congress the power to write laws, raise revenues, and spend and borrow money on behalf of the United States,” the plan reads. “There is no power more consequential. … Yet for decades, Congress has let this power atrophy – thereby depriving the people of their voice.

The House agenda seeks to course correct, thereby reestablishing the clear boundaries between executive agencies and Congress and restoring the power of American voters. The document contains four key themes, with ideas and legislation contained within each. Some of the highlights include:

  1. Reestablish and Enforce Limits on Agency Authority: The plan suggests increasing the use of authorization bills before funding an agency in order to limit the agency’s powers and establish expectations on what outcomes the money is expected to achieve. It also creates “best drafting practices” to use well-defined congressional policy and set clear parameters for agency rulemaking.
  2. Reform the Rulemaking Process: The plan argues that Congress must reconfigure the way it delegates rulemaking authority to agencies by requiring them to disclose a regulation’s costs, rules, and objectives. Congress would also strengthen its oversight of agency rule making by strengthening the Congressional Review Act and ending judicial deference to agencies.
  3. Exercise the Power of the Purse: By failing to pass annual appropriation bills, Congress is forfeiting its ability to actively examine every agency and program. The plan is to restore the annual appropriations process and to strengthen the Anti-Deficiency Act so Congress, and the people, can regain control of their government.
  4. Conduct More Robust Oversight of Agency Actions: The document encourages House committee to recommit themselves to robust oversight of laws, programs and agencies within their jurisdiction, and to make federal agency spending and performance data more accessible so Congress can understand how well money is being spent.

Then document concludes:

As George H. W. Bush once said, “A government that remembers that the people are its master is a good and needed thing.” When all three branches do what the American people have told them to do—and no more—they are ultimately showing respect for the will of the people. It is that respect that is so lacking today. That is why this project is so important. A constitutional government is a good, fair, decent government—one that listens to the people and promotes their well- being. That is the government we need—and that is the government we will have—as we work to create a more perfect Union.

In some ways it’s sad that there has to be a legislative agenda devoted to restoring the Constitutional framework for government. But at least we have a Congress refusing to sit idly by as we inch ever-closer to an all-powerful executive, which inevitably comes to be known as tyranny.