House Speaker John A. Boehner is confronted by a president who has become virtually lawless: He runs roughshod over existing laws and legislation by changing them or not enforcing them, in complete violation of the separation of powers under Article II, Section 3. Administrative agencies under his jurisdiction issue rules and edicts beyond the scope ever intended by Congress in its enabling legislation. He makes “recess” appointments that are clearly unlawful and declared so unanimously by the Supreme Court. The list goes on and on.
Mr. Boehner has several responses available, including impeachment. He has chosen a lawsuit against President Obama to enforce the separation of powers. There is a more immediate and contemporaneous route to restoring congressional legislative authority than awaiting the multiyear, uncertain outcome of the judicial process.
It begins with the recognition that Congress has voluntarily diluted its own legislative powers over the years, starting with the Interstate Commerce Commission in 1887, an “independent agency” that developed regulations for railroad and shipping rates and operations. However, Congress retained control over the commission and terminated it in 1980 in favor of rate competition, setting a positive free-market precedent.
Subsequently, delegation of rule-making authority to agencies and bureaus under presidential control began the dilution of congressional authority and the separation of powers. Congress has walked away without any meaningful oversight over the rules these entities promulgate or how they are administrated. The rules issued by these agencies are a burden now estimated by the Competitive Enterprise Institute to cost our economy $1.9 trillion a year in compliance expenses, equal to more than half of our nation’s annual budget.
Since the Constitution does not authorize Congress to delegate its legislative duties to others, Congress could redeem itself immediately by reasserting its legislative authority. A good place to start is with the Internal Revenue Service (IRS), which has become a runaway agency. The specter of the IRS commissioner smirking at outraged House Ways and Means Committee members seeking honest answers about Lois Lerner’s “lost” emails should terrify law-abiding taxpayers. A very real option would be for Congress to abolish or defund the IRS — now with 90,000 employees and a $2 billion budget — and create a new tax agency wholly under congressional control.
The Constitution provides that only “Congress shall have the power to lay and collect taxes ” (Article I, Section 8). The president has no authority over fiscal matters except through his veto power. Congress‘ exclusive tax-collection authority was reaffirmed with the ratification of the 16th Amendment in 1913: “Congress shall have the power to lay and collect taxes on incomes .” There was no mention of a presidential role in this process.
Congress‘ first mistake on taxes occurred in 1862, creating the commissioner of internal revenue in the executive branch (Treasury). Congress can remedy that error by creating a new tax-receipts office within and wholly under the control of Congress. Name it the Congressional Tax Collection Bureau, not a “service.”
Members of Congress would be responsive to those constituents who run afoul of absurd decisions or arrogant conduct of the tax bureau personnel. Such intimacy with their taxpaying citizens might lead Congress to more quickly respond to the need for a simpler and fairer tax code. (One of the bureau’s responsibilities should include estimates of the tax-revenue effects of proposed tax-law changes using a dynamic-scoring methodology, contracted out to private-sector sources able to fairly score Kennedy-Reagan-type tax reform plans.)
If the House were to send IRS-repeal legislation to the Senate, Majority Leader Harry Reid would surely sit on it. This would provide another powerful reason to “change the guard” in the Senate, and it would become clear to Americans that a significant change in the White House is essential in 2016. Meanwhile, Congress could — and should — use this model to reclaim its rightful legislative authority over runaway executive rule-making agencies and independent regulatory bodies, such as the Environmental Protection Agency, the Occupational Safety and Health Administration and the Securities and Exchange Commission, which are destroying jobs and making a shambles of our economy while trashing the separation of powers and producing a result resembling those European nations ruled by a parliament and a “professional” civil service.
The current members should be angry at the relinquishment by earlier Congresses of constitutional responsibilities and authority to administrative agencies and the president. They can restore congressional authority by abolishing the IRS and reorganizing tax collection under the direct control of Congress. This would be the strongest act by Mr. Boehner to restore power to Congress and discipline a runaway president.
Lewis K. Uhler is president of the National Tax Limitation Committee. Peter J. Ferrara is a senior fellow at the foundation and at the Heartland Institute.