There are some green shoots of governing activity on Capitol Hill. There was that deal that broke the logjam on Senate confirmation of Obama appointees. Congress came together to lower federal student loan rates. Heck, there is still hope that the folks up there will do comprehensive immigration reform. And, yet, there’s no denying that Congress is busted.
Obama wouldn’t be the first to sidestep the legislative branch. Presidents have always done it. But they did so with a Congress that relished governing. That noble concept disappeared with the election of the GOP House majority in 2010 and the political kidnapping of Speaker John Boehner (R-Ohio). Instead of an extraordinary power exercised by the president, the executive order under Obama now has become a necessary tool for keeping the ship of state afloat.
The downside of an executive order is that it is a temporary move that could be reversed by a new president, particularly if that person is from the opposing party. Nothing beats the permanency of a law. But, as we learned from a 2012 University of California Irvine School of Law study by Richard L. Hasen, Congress is perfectly happy to let the Supreme Court legislate for it.
As Adam Liptak of the New York Times noted in his story about the Hasen study, usually there is a sort of conversation between Congress and the court. If the former passes a law the latter deems flawed or unconstitutional, all Congress has to do is pass a new law to quell the objection. “This sort of back and forth works only if Congress is not paralyzed,” Liptak wrote. But, because it is, there “has been a huge transfer of power to the Supreme Court.” Hasen’s report shows how huge.
[I]n the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to a mere 2.8 average number of overrides for each term from 2001-2012….. [P]artisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.
As Liptak pointed out, congressional inaction in these cases gives nine justices — whose terms will outlast that of the president who nominated them and the Congresses that confirmed them — the last word on virtually everything that comes before it.
“No one should be surprised by that,” Center for American Progress president Neera Tanden told me when I asked her what it says about Congress that both the president and the Supreme Court have gone into the business of legislating. “I think the fact that Congress, and particularly the House of Representatives, seems incapable of fulfilling its most basic functions makes other parts of government react and act.”
“If the choice is between no action at all and executive action, it’s a no brainer that a president should use executive action to make progress for people,” Tanden continued. “Especially when Congress is this dysfunctional, it’s incumbent upon the president — any president — to use all the tools in his arsenal to address the country’s challenges.”
A tripartite system of government where only two of the branches function and the executive is limited in what it can do on its own to meet those challenges is doomed to failure. After all, a two-legged stool is a broken stool.
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