It has meekly surrendered to the President its pivotal lawmaking and oversight powers. Absent a miracle, the nation is destined to lose its time-honored checks and balances for a dominating and secret executive.
Congress has yielded to the president the decisive voice over war and peace. It customarily enacts open-ended authorizations to employ military force — for example, the Authorization to Use Military Force (AUMF) passed after September 11, 2001. The AUMF empowered the president to conduct war against international terrorism forever — putting the nation in a permanent state of war at the president's discretion. Since Pearl Harbor, Congress has never balked at supporting initiation of war or the use of military force by the president: Korea, Vietnam, Panama, Kuwait, Afghanistan and Iraq. The idea that Congress now would prohibit President Bush from using military force against Iran is preposterous.
Congress has delegated to the president sweeping discretion to freeze assets or to block financial transactions under the International Economic Emergencies Power Act of 1978 (IEEPA). President Jimmy Carter invoked IEPPA to freeze Iranian assets after the embassy hostage crisis. President Bush has relied on IEPPA to address perceived emergencies in Iraq, Syria and Lebanon. Congress has also endowed the president with virtually unreviewable authority to designate persons as foreign terrorists and organizations as foreign terrorist organizations. A designation freezes the bank accounts of the listed organization and makes providing any material assistance criminal.
The Senate has yielded its authority to require ratification of treaties by two-thirds vote by permitting the president to resort to simple legislation to implement major foreign trade or sister foreign policies. The World Trade Organization, for instance, was enacted by legislation despite its surrender of U.S. sovereignty over foreign trade disputes to international tribunals.
The legislative power of Congress has been punctured or surrendered in several respects.
c First, Congress routinely delegates to executive agencies authority to promulgate legislative rules to flesh out opaque regulatory statutes. These agency rules are presumptively valid under the Supreme Court's Chevron doctrine. Their number and importance dwarf the number and importance of congressionally enacted laws.
c Second, Congress has acquiesced in signing statements that declare the president's intent to disregard provisions of laws he has signed because he believes they are unconstitutional. Signing statements are indistinguishable from absolute line-item vetoes held unconstitutional in Clinton vs. New York. They result in enforcement of laws Congress did not enact because members approve all provisions in a bill, not the expurgated editions created by signing statements.
c Third, Congress has declined to repudiate President Bush's claimed authority to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) or any other law that would regulate collection of foreign intelligence. Mr. Bush, for instance, ordered the National Security Agency in the aftermath of September 11 to disregard FISA in targeting American citizens on U.S. soil for electronic surveillance on his say-so alone in contravention of FISA's requirement of a judicial warrant. On Dec. 16, 2005, the New York Times disclosed the NSA's disregard of FISA. Since the disclosure, Congress has done nothing to force the president to comply with the law or seek its amendment. Despite signing the recently passed Protect America Act of 2007 which amends FISA, the president continues to insist that he enjoys constitutional power to ignore the law whenever he wishes and without informing Congress.
Congress has not been satisfied with the hollowing out of its legislative power to date. It is eagerly searching for a constitutional method of giving the president line-item veto power that would further reduce Congress into irrelevance.
Congressional oversight — its most important function — has been crippled by Mr. Bush's extravagant assertions of executive privilege. The president, for instance, has instructed current and former White House aides to refuse to appear for congressional testimony regarding the firing of nine United States attorneys, potential perjury or obstruction of a congressional investigation, or illegal politicization of civil servants at the Justice Department. If President Richard M. Nixon had held that view of executive privilege, John Dean would have been blocked from testifying before the Senate Watergate Committee about the president's complicity in the Watergate cover-up. Nixon might have survived the scandal, and the American people would never have learned of his chilling misdeeds.
Congress has also been frustrated in ascertaining the details and legal rationale of the NSA's warrantless spying in violation of FISA by repeated assertions of executive privilege. But if government by the consent of the governed means anything, it means the right of the people to know what their government is doing to evaluate its wisdom and to adjust their political loyalties or activism accordingly.
House Speaker Nancy Pelosi has taken impeachment off the table, which further emboldens executive usurpations and arrogance. It constitutes a de facto judgment of Congress that nothing President Bush has done or claimed is an impeachable offense, a conclusion that will also protect his White House successors.
Congress has turned invertebrate for twofold reasons: Members are too ignorant of the Constitution to appreciate the magnitude of their derelictions or to fight for their prerogatives; and their loyalties to party dwarf their attachment to the Constitution. If there are any ways to correct these conspicuous member shortcomings, they do not readily come to mind.
Bruce Fein is a constitutional lawyer and chairman of the American Freedom Agenda.