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Congress Forfeiting Power to the President

Copyright 2001 by David W. Neuendorf



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One of the perpetual complaints against Congress is that it routinely usurps powers which the Constitution reserves [in the words of the Tenth Amendment] "to the States respectively, or to the people." That hasn't changed any. Yet in recent years, Congress has also shown little diligence in exercising many of the powers and responsibilities actually assigned to it by the Constitution.

The most obvious example of neglected responsibility is the power of Congress to declare war. Article I, Section 8 specifies that Congress alone must "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." Yet, since World War II Congress has satisfied itself with mere resolutions of (sometimes limited) support for military actions that the president can't legally take without a declaration of war. Getting permission from NATO or its big brother, the UN, is no substitute for following the process mandated by the Constitution.

Any treaty made by the president must be ratified by two thirds of the Senate before it can take effect, according to Article II, Section 2. That is a significant hurdle for the various treaties negotiated by presidents. Yet when the president and congressional internationalists wanted to involve us in NAFTA, they circumvented the ratification process by calling the treaty an "agreement." In my view, that was an illegal transfer of power from the Senate to the president.

Apparently the Supreme Court disagrees. According to an AP report on November 26, 2001, the court declined to hear a challenge to NAFTA: "The United Steelworkers of America argued that presidents should not be allowed to handle international deals like congressional-executive agreements to get around the Senate vote requirement for treaties." With this precedent, all three branches of government have now shown their contempt for the Constitution's treaty making process. This leaves us with the danger that any controversial treaty could be put into effect simply by renaming it an agreement.

Congress is especially susceptible to the temptation to turn over their powers to the president during times of war or crisis. Presidents are usually more than happy to take advantage of this. The present campaign against terrorist groups is no exception.

An article in the November 20, 2001 Washington Post lists many instances of congressional powers that they claim President Bush has arrogated to himself. It is interesting to note that many of their complaints arise from new executive powers in legislation such as the so-called USA Patriot Act. Well, guess who had to approve that legislation before the president could sign it? A majority of our intrepid legislators had to vote for it. Apparently many in Congress doesn't feel comfortable with the powers and responsibilities to which their oath to obey the Constitution obligates them.

The extreme popularity of George W. Bush in this time of war makes it politically difficult for members of Congress to exercise that body's responsibilities when they come into conflict with the president's will. It also makes this a dangerous time for our Republic, with a majority of citizens willing to go along with almost anything in the name of national security. Let's encourage our representatives and senators to support the president when he defends our nation while staying within the bounds of the Constitution; but to stand tall against any violation of that fundamental law.