Executive Overreach in Domestic Affairs Part I—Health Care and Immigration

Congress has lost power to the executive branch, through both ceding it to administrative agencies and through power grabs by the President. Just as Congress has not always safeguarded its own authority, the President has overstepped the bounds of his constitutional powers. Unfortunately, President Barack Obama has acted unilaterally to effectively change the law, damaging the separation of powers in the process. These are challenges that will not disappear when the next President takes office, so Members of Congress should consider ways to rein in the current President and continue to do so with the next Administration.

Congress should not rely on the courts to resolve every dispute with the President over the scope of their powers. Congress has the tools to resist the President’s intrusion into its sphere through appropriations, oversight hearings, and impeachment proceedings. The Senate has the additional tool of providing advice and consent on judicial and executive branch nominations, and this can include refusing to confirm nominees.

Congress also should think twice before making broad delegations of lawmaking authority to administrative agencies, since they often are insulated from oversight, and should find ways to increase agencies’ accountability and transparency, such as using the Congressional Review Act or reforms like the perennially proposed Regulations from the Executive in Need of Scrutiny (REINS) Act.

With any luck, the next President will take seriously the duty to faithfully execute the laws Congress has chosen to pass and work with Congress to repair the damage to the separation of powers and the Constitution that has been done over these past seven years. It may be difficult to resist the temptation to copy President Obama’s actions, but for the sake of our liberties, Congress should encourage the next President to comply with the limits the Constitution places on executive power.

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