Un-Tipping the Scales Part I: The Executive Powers Checks and Balances Amendment
Our Founding Fathers knew that man was corrupt and sinful by its very nature. Although there are many today who wish to believe that this is not the case, that mankind is evolving into a higher morality, that we are moving toward a utopian world order; the truth is that these people understand less history than our Founding Fathers did. History shows just the opposite; that although there are rises and falls in morality, the general trend is downward. Thus, our forefathers chose to place “checks and balances” into the US Constitution. This was an attempt to prevent tyranny from taking hold. At the base of the scales holding the balance, the authors of the US Constitution relied on the populace being the conscience of our government. Thus, they didn’t make the Constitution air-tight and perfect. In fact, Alexander Hamilton stated that it would be impossible to make such a document perfect. In my opinion, had the Founding Fathers known that society would become as less educated and informed as it has now become, they would have placed in tighter controls. For as our society has become dumbed-down in the last century, both in history and in political interests, our elected leaders have been able to get away with egregious violations of the Constitutional checks and balances. Because we are now in this state of ignorance, we must shore up the weak areas until such time as the populous regains its strength through knowledge.
First, I wish to examine is the overweight power found in Executive Branch. See if the following in the Constitution appears to hold true today:
Article 1, Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article 2, Section 3. … [the President] shall take Care that the Laws be faithfully executed, …
Did all of the laws in this nation originate in Congress? If you are in business, you know that this is absolutely not true. The Federal Regulations placed upon Americans by the executive branch are enormous. (You can view the daily process of creating these regulations by viewing the Federal Register.) Some regulations are legitimate, where the executive branch is enacting laws passed by Congress and staying within the boundaries of the intent of Congress. For example, much of the transportation regulations have their basis in laws passed by Congress to make transportation safer. Some regulations are marginally legitimate whereby the initial laws were passed by Congress, but the executive branch has expanded or distorted the scope of the law into areas not approved by Congress. The census is a recent example of this. The Constitution calls for a census. It does not call for an intrusive, multi-page questionnaire asking private questions about your daily life. There are some cases where regulations, many of these initiated by executive order, have no basis in Congressional laws at all. Examples of these can be found in un-ratified UN Treaties. Executive Order Number 13107, called for Implementation of Human Rights Treaties (such as the International Covenant on Civil and Political Rights), and directing agencies and departments of the executive branch to set up mechanisms for carrying out the obligations mandated by these treaties. Through this President Clinton order, UN treaties still un-ratified by the Senate (such as the UN Treaty on the Rights of the Child) are being implemented through regulation. This is a clear abuse of constitutional authority. And according to James Madison, it constitutes tyranny.
“The accumulation of all power, legislative, executive, and judiciary in the same hands…may justly be pronounced the very definition of tyranny.”
–James Madison, Federalist 46
Executive Orders (EO) and Federal Regulations were not described in the Constitution. Currently, the only checks and balances for these regulations are in the Congress (passing a law to address the order making it no longer valid) and in the Judiciary (if some party should sue to say the regulation is unconstitutional). Are these sufficient? I would argue that it is not. History shows that Congress is very slow to act with usurpation of power. Sure, they chest thump and hold hearings, etc. But rare is an act to overturn an EO and doing so is more a function of politics than ensuring constitutionality. As for the judiciary, the process of suing is costly and time-consuming. In addition, problems in the judiciary powers (to be described in Part II) may not guarantee a true constitutional ruling. Therefore, I suggest that an amendment to the US Constitution be drafted to place checks and balances on Executive Orders and Regulations. Since this is a rule making issue, the check should be applied by the Congress. I suggest the following verbiage:
The following shall be added to Article 2, Section 3.:
The President shall execute the Laws passed by Congress. Except when national emergency dictates, regulations and enforcement shall be restricted to the boundaries defined by the Congressional Law. Emergency regulations and enforcements shall expire after 90 days unless Congress affirms the actions through a vote of yeas and nays with the names of those voting for and against being recorded in the journal of each House respectively. Such affirmations shall be reaffirmed every 90 days until emergency has ceased. No Right, directly granted by the Constitution, shall be denied to citizens by an emergency order, regulation or enforcement action without first receiving affirmation from Congress. Such restriction shall be minimized in scope and duration in response to a direct threat to the citizens. All executive orders expire 90 days after the termination of a sitting President’s term in office, unless individually renewed by the following President.
The following shall be added to Article 1, Section 7.:
Congress shall review, during the second year of each House of Representative’s term, all executive orders, regulations and enforcement directives to ensure that they fall within the boundaries established by Congressional Law. Congress shall then direct the President that the non-compliant executive orders, regulations and enforcement directives be brought into compliance. Disagreements between Congress and the President shall be settled by the Supreme Court.
The Constitutional Renaissance Convention should place the Executive Powers Checks and Balances Amendment as one of its top priorities.