Open-Ended Laws A Disaster For U.S.

Posted: August 29, 2013

Small wonder, we say, that Congress is held in such poor repute. That the legislative branch is mired in gridlock may be sufficient cause for complaint with some folks, but what roils us is the extent to which Congress has idly ceded so much of its power to a marauding White House.

That the Constitution is, or should be, a “living” document, liberals provide as reason to fold, spindle, and mutilate our formula for governance. Now, in conjunction with that perversion, comes the notion that the law is “living” as well.

Proof aplenty of this destructive idea can be seen not only in President Obama’s decision to enforce the law, or not, however he pleases, but also in the way Congress writes legislation. Look at any of the recent monstrosities — the Affordable Care Act and Dodd-Frank will do for starters — and you’ll see them replete with “shall,” “may,” “determine,” and even the occasional “unreviewable discretion” granted to some secretary or other Cabinet official.

Gone are the days, says National Review’s Charles Cooke, when the law was “prescriptive, detailed, and fixed.” In its stead is an open-ended series of conditions, an avenue for the executive to exercise power as it deems fit — and for Mr. Obama to make good on Woodrow Wilson’s desire to establish government by expert.

Sorry, but that’s not how the Framers envisioned it. In Federalist 47 and 48, Madison spoke directly to the necessity of separation of powers. Recent developments stand this bedrock concept on its head.


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