The Environmental Protection Agency (EPA) issues pollution regulations that will severely restrict the sale of new gas-powered vehicles, essentially forcing Americans to purchase electric vehicles.
The Centers for Disease Control (CDC), citing the public health crisis caused by the COVID-19 pandemic, declares a nationwide moratorium on evictions in rental housing. This policy drives up rents and makes it more difficult for renters to find housing, as landlords cannot evict problem tenants.
The Biden Administration claims that the president can unilaterally “cancel” student loan debt. In other words, the chief executive can transfer the debt owed by college graduates to American taxpayers, without receiving authorization from Congress.
What do all these actions have in common? Besides being terrible public policy, they all represent an unconstitutional encroachment by the executive branch on the powers of Congress. The president is not a king, and the Constitution prevents him or her from ruling by decree.
Article I, Section 1 of the Constitution couldn’t be clearer: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” In other words, Congress—not the president or the Supreme Court—makes the laws.
Of course, the president has the important duty to “take Care that the Laws be faithfully executed”—to enforce the law. And the president has the power to veto laws passed by Congress. But he or she can neither create laws nor ignore laws duly passed by the legislative branch.
This confining of the legislative power to Congress represents one of the many checks and balances that the Constitution establishes between the three branches of government—legislative, executive, and judicial. The Founders understood that centralizing power in a single body or person invited tyranny, so they wisely devised a system that divided power among the three branches.
Starting during the Great Depression in the 1930s, however, progressives altered this beneficent design by establishing dozens of new agencies within the executive branch to set wide-ranging policies that affected nearly every aspect of American life. Proponents of expanding the powers of the executive branch argued that economic and social emergencies necessitated bypassing the legislative process. The “experts” who ran these agencies would set more rational policies than the people’s representatives in Congress.
Sound familiar?
Granting more and more power to the executive branch distorts our politics in many ways. Consider the EPA’s electric vehicle mandate. Regardless of the merits of restricting gas-powered vehicles, such a policy will result in massive changes to the transportation economy and the energy grid, just to name a couple. Surely, Americans should consent to this radical policy change through their elected representatives, rather than being forced to go along with the dictates of unelected bureaucrats.
Likewise, the Biden Administration has attempted to “cancel” student debt through increasingly strained readings of various statutes. Millions of dollars in debt could be transferred to American taxpayers at the stroke of the president’s pen, without receiving explicit authorization from Congress.
Furthermore, the ever-growing executive branch violates the principle of federalism that allows each state to set its own policies on most issues. It makes sense, for instance, that states and localities should set rules about rental housing because they are much closer to this issue than the federal government. But the increasing concentration of power in the executive branch of the federal government encroaches upon the prerogatives of states.
Unconstitutional executive actions and the centralizing of power in the president warp our politics by raising the stakes of each presidential election to an absurd degree. Because the president has greater and greater power to radically change federal policy, our two major political parties treat every presidential race as a life-or-death matter. Such an approach also destroys the beneficial federalism that allows each state to govern itself. California shouldn’t set every policy for Wyoming, and vice versa.
Fortunately, Goldwater is working to roll back this centralization of power. In June, Goldwater joined many other liberty organizations in successfully arguing that the Supreme Court should overturn so-called Chevron deference. Under this precedent, judges were required to accept executive agencies’ interpretations of statutes passed by Congress. For example, under the federal statute that outlawed “discharg[ing]” a “pollutant” into a “water of the United States,” the EPA claimed that completely dry land was a “water of the United States,” allowing the agency to go after landowners even if they had never polluted any sort of “water.” By rejecting this deference to agencies’ interpretation of statutes, the Supreme Court recognized the right of Congress to make the laws. Executive branch agencies have no ability under the Constitution to rewrite those laws to suit their own purposes. This is the case with state constitutions and state-level executive branch agencies as well—which is why Goldwater created a landmark law to end state-court deference and passed it in multiple states around the country, to great success.
Fearing the arbitrary and unlimited power of monarchies, the Founders crafted a system that limited government power and divided it between three branches. As the branch that is closest to the people, Congress has the sole power to make the laws that American citizens live under. Reducing the concentration of power in the executive and restoring Congress to its proper role will help to rebuild the ingenious structure of our constitutional system.
Timothy K. Minella is a Senior Fellow at the Goldwater Institute’s Van Sittert Center for Constitutional Advocacy.
