- The Washington Times - Monday, March 20, 2006

The proposed Legislative Line Item Veto Act of 2006 is the latest voluntary surrender of congressional power to the executive branch that has persisted for decades.

The effeteness has given rise to a White House scornful of the law, contemptuous of moderation and vindictive toward dissent. Constitutional checks and balances have withered because Congress has refused to fight for its prerogatives. A permanent imperial presidency is inescapable unless Congress reasserts itself or the Constitution is revamped.

The power of the purse was calculated to prevent executive usurpations. But the Line Item Veto would yield much of that power by crowning the president with authority at any time to propose a rescission of discretionary spending or targeted tax benefits that had been previously enacted within a more comprehensive statute. Congress would be required to vote on the president’s proposed spending cuts or tax increases within 10 days and without the possibility of amendment.

The pending legislation would enormously strengthen the president’s power to intimidate Congress. For example, President Bush could retaliate against members who criticized the conduct of the war in Iraq or overhauling Social Security by proposing rescissions targeted at their constituents.

Congress is surrendering power of the purse to the White House because members tacitly recognize their incorrigible self-indulgence. Austerity and frugality are alien to them.

Congress has surrendered its war powers to the president by anemically defending the Foreign Intelligence Surveillance Act (FISA). In the wake of September 11, 2001, Mr. Bush secretly ordered the National Security Agency (NSA) to eavesdrop on American citizens in the United States to gather foreign intelligence without judicial warrants.

The secret surveillance program flouted FISA, enacted to deter historically documented presidential spying abuses in times of domestic or international turmoil. FISA does not preclude gathering foreign intelligence but places a magistrate between the spy and the targeted citizen on U.S. soil to prevent the president from equating political dissent with treason.

Mr. Bush’s claimed constitutional authority to ignore FISA and to conduct surveillance unilaterally and indefinitely without informing Congress would reduce the legislative branch to an ink blot in the permanent war against international terrorism. Among other things, the president in the name of thwarting al Qaeda could open mail, break and enter homes, and torture detainees in violation of federal statutes.

Yet Congress has acquiesced. There have been sporadic oversight hearings. But members have yet to learn the full scope of the NSA’s surveillance of American citizens or why the Bush administration insists FISA is unworkable after singing its praises to the Senate Intelligence Committee on July 31, 2002.

The Senate Judiciary Committee has groveled, like Henry IV at Canossa, without result, in begging permission to ask a former attorney general and deputy attorney general to testify about the legality of the NSA. One proposal would not only authorize ongoing NSA spying without knowing its dimensions but decline to rebuke the president’s constitutional transgressions.

Congress has also surrendered its power over international trade, federalism and tort reform to the executive branch. By endorsing U.S. membership in the World Trade Organization, Congress made the president virtually omnipotent over imports and exports, which constitute a staggering percentage of the U.S. economy. In the domestic realm, Congress has endowed executive agencies with power to pre-empt state tort laws through regulations ordaining national standards. In other words, compliance with a federal agency regulation would provide a shield from suit under a more exacting state law.

Federal pre-emption circumscribes state autonomy and experimentation. The power most properly belongs with Congress where state interests are represented than with politically insulated agency bureaucrats.

A wholesale delegation of legislative power to the executive began with the New Deal. Congress has regularly empowered agencies like the Federal Communications Commission, the Securities and Exchange Commission, the Federal Trade Commission, the Environmental Protection Agency, the Occupational Health and Safety Administration or the Food and Drug Administration to promulgate detailed legal codes. The sole restraint on agency discretion is an illusory “public interest” standard. Congressional lawmaking has been reduced to a shadow of agency lawmaking.

The power of oversight has been enervated by a reluctance to challenge flimsy assertions of executive privilege, for example, denying Congress information about the Hurricane Katrina fiasco or the NSA’s warrantless surveillance of U.S. citizens. Congress’ urgent informing function cannot be discharged without knowing what the president is doing and why.

Even the impeachment of President Clinton showed earmarks of congressional decay and irresponsibility. The House of Representatives entrusted Independent Counsel Kenneth Starr with gathering the decisive evidence and defining an impeachable offense.

The reasons for the long train of congressional surrenders can only be dimly perceived. Professional politicians instinctively crave evasion to avoid campaign issues for opponents. And members of Congress are progressively unschooled in constitutional philosophy and statesmanship. They do not appreciate the magnitude of their capitulations. If the deterioration does not reverse, the Constitution’s checks and balances will need rethinking.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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