Does Congress have the power to abdicate its powers?

Mount Irish in the Basin and Range area

It was somewhat amusing to hear Arizona Rep. Raul Grijalva argue against Nevada Rep. Cresent Hardy’s amendment that would block funding in key counties in several states for presidentially designated national monuments because the law allowing it, the Antiquities Act, has been around since 1906. (At about 9:30 into the video.)

The Constitution has been around since 1789.

Article IV, Section 3 of that document reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

A Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction.

Still the Supreme Court has upheld the act three times, but on arguments other than constitutionality.

Despite this questionable authority, on Friday the president is expected to sign a proclamation creating a 700,000-acre Basin and Range National Monument in Coal and Garden valleys in Lincoln and Nye counties, even though most of the state’s congressional delegation and local elected officials oppose it. All that matters is that Harry Reid wants it.

On Wednesday, the House backed Hardy’s amendment by a vote of 222-206. The only Nevada representative voting against it was Dina Titus.

But Hardy, in whose district the soon-to-be monument is located, told the Las Vegas newspaper’s Washington reporter the amendment will not stop the designation, but would serve as a message to President Obama that Congress is unhappy with such executive fiats.

“Here we have bureaucrats continuing to shove things down people’s throats in areas where people don’t even have a chance to address their issues,” Hardy was quoted as saying.

According to the draft of the proclamation, cattle could still graze on the land, if the BLM continues to allow it, but no new roads or rights of way would be allowed. It has been speculated that Reid wants the designation — not so much as to protect antiquities and the “art” project called “City” near Hiko — but to block a railroad line that could take nuclear waste to Yucca Mountain. But what is to stop Congress — with its power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” — from creating such a right of way?

 

 

 

Advertisements

8 comments on “Does Congress have the power to abdicate its powers?

  1. Rincon says:

    While you’re at it, we should ask if Congress ever had the power to abdicate it’s power over the budget which, according to the Economist, it did in 1921:

    “The president’s budget was an innovation of the 1920’s. Before then, Congress set the budget as the Founders, ever suspicious of a strong central authority, intended. This worked well until the civil war, when the federal government’s principal peacetime duties were to run customs houses and post offices and to give away land. By the beginning of the 20th century, the federal government had become much more complicated. The first world war increased federal spending from $726m to $18.5 billion in 5 years ($17.2 billion and $253 billion in today’s money). In 1921, an overwhelmed Congress asked the president to submit a budget for the first time.

    Since then, every president has done so, but the exercise has become drained of meaning since Congress took power over the budget back. This evil can be traced to Watergate. Richard Nixon, worried about inflation and the deficit, decided not to spend all the money Congress had appropriated. At one point, he vetoed nine spending bills in one go. Congress took advantage of the scandal that was enveloping the president to reduce his control over federal spending in the 1974 Budget Act. Nixon duly signed the law in July and resigned the following month.

    One of the new law’s stated aims was to control the deficit, but it has had the opposite effect. From 1950 to 1974, the deficit averaged 0.7% of GDP; since Congress retook control it has averaged %3.2%”

    And, “According to textbooks, the budget is a thing jointly agree by both houses of Congress and then signed by the president by the end of September each year. This is how the budget has worked 6 times in the last 40 years. The rest of the time it has often consisted of last-minute negotiations to avoid a government shutdown or a breach of the debt ceiling. Agreement is reached only by putting off difficult decisions indefinitely.”

    Note that WHEN CONGRESS RETOOK CONTROL OF THE BUDGET, THE AVERAGE YEARLY DEFICIT MORE THAN QUADRUPLED. Looks like our deficit problems are more likely to have stemmed from Congressional action than from any President. Obama’s public approval rating may only be 46%, but Congress has an approval rating of only 16%. But you guys gripe about Obama all day long while essentially ignoring Congress. Why?

  2. Of course this really has nothing to do with the subject at hand…you should really get your own blog.

  3. Rincon says:

    Sorry. Conservatives don’t want to hear this, of course.

  4. […] the congressional abdication of its constitutionally enumerated power to control public lands with the Antiquity Act of […]

  5. […] for the action not being illegal, consider that the Constitution enumerates the powers vested in Congress and the […]

  6. […] Heritage Foundation essay argues, “The delegated powers are defined as placed in distinct branches of government for the […]

  7. […] The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906. […]

  8. […] The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906. […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s