Shadegg-Coburn Plan Has Merit but Falls Short

Posted June 25, 2008 at 3:25pm

As a conservative who has often thought liberals had too little concern about constitutional limits on government action, I was pleased to see that Rep. John Shadegg (R-Ariz.) has finally persuaded a Senator, Tom Coburn (R-Okla.), to join him in supporting legislation requiring a bill’s sponsors to specify which of the Constitution’s “enumerated powers” justifies the proposed action.

This is essentially a symbolic act since sponsors can always fall back on the broadest of generalizations (“provide for … the general welfare”), but symbols are not meaningless and the effort is commendable.

Looking through the press reports, however, I have failed to find the companion legislation requiring the same of the executive branch. This is not a problem in regard to legislation proposed by the president since the enacting statutes would have to be introduced by Members of Congress, at which point the requirement would attach.

But in its oversight role, Congress is frequently examining actions undertaken by the executive without legislative authorization. Under which enumerated power, for example, did President Bush order suspected terrorists to be held at Guantanamo (the Constitution specifically places with Congress the authority to determine “rules concerning captures on land and water”) or to deny prisoners habeas corpus (the power to suspend habeas corpus is in Article I, making it a legislative power)?

What about presidential declarations that he will determine how, and whether, legislation is to be enforced? (Article I, Section 7 limits his options when receiving duly enacted legislation to either signing, at which point the legislation becomes the law, or issuing a presidential veto.) What enumerated power is being drawn upon?

This is not to condemn the Shadegg-Coburn proposal; it simply falls short. It would require one branch of government to follow the Constitution, but not another.

Sadly, this Republican focus on constraining Congress while empowering the executive has become what the French call an idée fixe. It is an obsession even the best of them cannot seem to shake.

Consider the ongoing public debate about earmarks. Much of what has been passed through Congress as “earmarks” has been justifiably criticized. Any legislation ought to be dealt with openly, with sponsors identified and Senators and Representatives given an opportunity to vote aye or nay on the proposal. But once that is done, one is back to the fact that spending decisions belong not with the executive branch but with Congress.

The crackdown on earmarks is hailed as a blow for openness in government as well as restraint in spending. But what happens when Members do not make these determinations? The decisions as to where to spend the public money are then left to the discretion of unelected agency personnel whose deliberations generally lack transparency, whose interests or potential conflicts are untested and whose identities are unknown. If it is important (and I believe it is) for sponsors to be known and their motivations and procedures subject to examination, how can it be thought an improvement to allow spending decisions to be made in even greater secrecy? Do Shadegg and Coburn (especially, the latter, who has waged such a campaign against earmarks) have legislation in the works to require the executive branch to provide, with their budget requests, information as to who made the decisions and how?

More and more each year, Congress becomes an afterthought, a much-diminished rebuke to the Founders’ dreams of a government in which important powers would be separated and balanced against each other. It is not by executive fiat that this marginalization of Congress has come about but by the actions of Congress itself.

If Shadegg and Coburn are to concern themselves with constitutionality — and hurray for doing so — they should remember as well the obligations the Constitution imposes on them and their equal branch of the U.S. government.

Former Rep. Mickey Edwards (R-Okla.) is a lecturer at Princeton University’s Woodrow Wilson School of Public and International Affairs and author of “Reclaiming Conservatism.”