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On Wednesday, as the dust was settling, George Will published a column that deserves attention. In it, he suggested a number of measures that John Boehner and Mitch McConnell should press as soon as the new Congress meets.
Some of his suggestions are obvious: the Republicans should repeal the tax on medical devices, authorize construction of the Keystone XL pipeline, mandate completion of the nuclear waste respository in Nevada’s Yucca mountain. Passing these will place President Obama in the awkward position of following their lead or vetoing these popular and sensible measures.
The other three measures Will suggests I find less obvious but far more interesting and compelling, for they address constitutional questions:
Abolish the Consumer Financial Protection Bureau. This creature of the labyrinthine Dodd-Frank law violates John Locke’s dictum: “The legislative cannot transfer the power of making laws to any other hands. … The power of the legislative … [is] only to make laws, and not to make legislators.” The CFPB is empowered to “declare,” with no legislative guidance or institutional inhibitions, that certain business practices are “abusive.” It also embodies progressivism’s authoritarianism by being, unlike any entity Congress has created since 1789, untethered from all oversight mechanisms: Its funding, “determined by the director,” comes from the Federal Reserve.
Repeal the Independent Payment Advisory Board. This expression of the progressive mind is an artifact of the Affordable Care Act and may be the most anti-constitutional measure ever enacted. It certainly violates the first words of the first section of the first article of the Constitution: “All legislative powers herein granted shall be vested in a Congress.” The IPAB’s purported function is to achieve the ACA’s purpose of cost containment by reducing Medicare spending. When the IPAB’s 15 presidential appointees make what the ACA calls a “legislative proposal” limiting reimbursements to doctors, this proposal automatically becomes law unless Congress passes a similar measure cutting Medicare spending. Under this constitutional travesty, an executive branch agency makes laws unless the legislative branch enacts alternative means of achieving the executive agency’s aim. The ACA stipulates that no measure for the abolition of the IPAB can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. So, one Congress presumed to bind all subsequent Congresses in order to achieve progressivism’s consistent aim — abolishing limited government by emancipating presidents from restraint by the separation of powers. This impertinence by the 111th Congress requires a firm rebuke by the 114th. . . .
Pass the Regulations from the Executive in Need of Scrutiny (REINS) Act. It would require that any regulation with at least a $100 million annual impact on the economy — there are approximately 200 of them in the pipeline — must be approved without amendments by joint resolution of Congress and signed by the president. “In effect,” writes the Hudson Institute’s Christopher DeMuth, “major agency rules would become legislative proposals with fast-track privileges.” By requiring legislative complicity in especially heavy federal burdens, REINS is an ingredient in the recipe for resuscitating Congress, which has been far too eager to cede legislative responsibilities to the executive branch.
What we need above all else in the next few years is a reassertion of constitutionalism and a restoration of the separation of powers. What we need is for the legislative power to assert its primacy. Otherwise the United States will become a dictatorship, and the consent of the governed will no longer be requisite.
When he became president, Barack Obama set out to “fundamentally change America”; that is why he tried to brand his administration and its policies as the New Foundation. His aim was to make sure that elections no longer matter. As if the point needed confirmation, witness his behavior these past few weeks: after insisting that the election be fought as a referendum on his policies, he announced on Wednesday that his party’s stunning defeat mattered not one whit.
He needs to be shown that elections matter a great deal. Boehner and McConnell should go for the jugular.