The Specter of Executive Lawmaking in America

By:  Jeffrey Scott Shapiro
12/26/2012
       
The Specter of Executive Lawmaking in America

Recently, U.S. Treasury Secretary Timothy Geithner announced that the president wants permanent debt-ceiling authority, even though that power is solely vested in Congress.

If such power were transferred from Congress to the White House, it would signal surrender and submission of our legislative branch, the only branch that has the power to create law under the Separation of Powers doctrine of our Constitution.

Recently, U.S. Treasury Secretary Timothy Geithner announced that the president wants permanent debt-ceiling authority, even though that power is solely vested in Congress.

If such power were transferred from Congress to the White House, it would signal surrender and submission of our legislative branch, the only branch that has the power to create law under the Separation of Powers doctrine of our Constitution.

For the past several decades, however, presidents have gradually enhanced the power of the executive branch beyond the scope of what the Constitution intended by creating law with executive orders, a clear violation of the Separation of Powers doctrine that limits lawmaking to Congress and mandates an equal balance of power between all three branches of government.

Since President Hoover more than 8,700 executive orders have been signed, and although they sometimes serve the legitimate purpose of facilitating laws passed by Congress, many presidents have abused their function to create laws that Congress has voted against — giving rise to an almost omnipotent administrative state controlled by the White House.

As a result, “much of the original legislative power vested in Congress is now exercised, as a practical matter, by executive agencies, independent commissions, and the courts,” according to Louis Fisher’s Constitutional Conflicts Between Congress and the President. “The President’s legislative power, invoked on rare occasions in the early decades, is now discharged on a regular basis throughout the year in the form of executive orders.”

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Jeffrey Scott Shapiro (photo)

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