March 15, 2011
To the Members of the 112th Congress:
To bring American government back within the bounds of the Constitution —to reconstitutionalize it—will be no easy or simple task. How dismissive of the Constitution our government has become was memorably expressed by then Speaker of the House, Nancy Pelosi, in two widely quoted remarks about the health care bill that ultimately became the Patient Protection and Affordable Care Act (PPACA), whose constitutionality is seriously in dispute right now. It is worth recalling her words, because they are a surface expression of an attitude toward our politics that is deeply entrenched and must be replaced by a very different attitude if we are to recover constitutional self-government. In October 2009 when a reporter from CNSNews.com asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious? Are you serious?” Then in a March, 2010, speech, Pelosi said, “We have to pass the bill so you can find out what’s in it.”
Her rhetorical question—“Are you serious?”—was, of course, meant not to begin but to end conversation. Such contemptuous dismissal of citizens’ serious concern about constitutionality made many voters indignant last November, and they carried their well justified indignation with them to the ballot box. The arrogant contempt continued in the sniffing dismissals that greeted the new Congress’s show of respect for the Constitution. This arrogance comes from a belief that is held to be unquestionable. This is the belief that the New Deal irrevocably transformed America into a country whose central government has the authority to address any social or economic problem, and to mandate or proscribe any individual conduct plausibly related to alleviating that problem. To the former Speaker and those who agree with her, it is preposterous—mind-boggling—that any 21st century American should presume to question this article of faith. The same arrogant incredulity struts and postures angrily in Wisconsin and Ohio and other states where public employee unions and their advocates in the media assert a right to collective bargaining that is somehow supposed to be regarded as sacred and beyond question. Whatever citizens may think of the merits of the question, the arrogance of such assertions sticks in the craw of those who cherish self-government.
Pelosi’s second statement acknowledges that in this post-New Deal America, when Congress does something, it’s not really Congress that does it. We have to pass a bill to find out what’s in it because what’s “in” it resides nowhere in the language of the legislation, but in the rulings and regulations that will be handed down, months and years after the bill-signing ceremony, by administrative agencies empowered by Congress to make all the practical policy determinations. What one New Dealer advocated in 1937 has come to pass—every important law enacted by Congress is really “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.” In PPACA’s declaration of war on the problem of people being uninsured, under-insured, or over-insured, it creates 159 new federal entities to devise and execute a battle plan.
Representative Pelosi is right about the way America is governed now: The federal government can do just about anything it wants, and can do it just about any way it wants. It can do this because, in the course of the last two generations, the federal government has assumed responsibility for the social and economic well-being of every American. This required the creation of programs for managing in minute detail all the social and economic relations between all the different members and segments of American society—employers and employees, producers and consumers, doctors and patients, husbands and wives, parents and children, and on and on. Because Congress cannot possibly write legislation governing so many details of so many interactions, it must outsource rule-making to boards, agencies and commissions, such as the Elder Justice Coordinating Council or the Cures Acceleration Network created in PPACA.
As the New Deal was gathering steam the Supreme Court held, in 1935, that such “delegation run riot” violated the Constitution’s assignment of legislative power to Congress. That is, the Constitution does not permit Congress to delegate its powers to any other governmental entity.
The Court has never explicitly overturned that decision, though it has implicitly negated it over the subsequent 76 years by acquiescing as Congress plunged ahead in riotous delegation. When Congress delegates real governance in this way to agencies not answerable to the American people, it creates the conditions for lawless policy, subjecting every detail of American life to regulators bound by nothing but their own will.
In the reading of the Constitution with which the newly elected House of Representatives began its first session, one hopes that every member gave full attention to Article One, Section One: “All legislative powers herein granted shall be vested in a Congress of the United States.” Supreme Court justice Hugo Black famously wrote about the First Amendment that “‘No law’ means no law.” By the same token, we cannot reconstitutionalize American government until jurists, legislators, and citizens begin to insist, “‘All legislative powers’ means all legislative powers.”
This reconstitutionalization would have been assisted if the House had also sat for a reading of the Declaration of Independence, especially the part about governments “deriving their just powers from the consent of the governed.” The 62nd Federalist Paper warned us against the sort of hyperactive government needed to secure every citizen’s socioeconomic well-being: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.” The predicament becomes much worse when the blizzard of edicts is issued, not by “men of our own choice,” but by appointed and usually life-tenured civil servants who cannot be removed or rebuked by mere citizens. This arrangement dilutes and attenuates the consent of the governed so severely that it deprives the government of what the founders considered the only source of legitimate power. We should bend our efforts to recovering the full range and authority of the constitutional consent from which the just powers of government are derived.