THE BLOG

Ten Congressional Commandments

11/29/2010 04:37 pm ET | Updated May 25, 2011

Members of Congress must honor Ten Constitutional Commandments if they wish to recapture more than marginal relevance to governing the nation.

At present, Members are like extras in a Cecil B. De Mille cinematic extravaganza starring the president in every scene. The president decides on war or peace, whether in Afghanistan, Pakistan, Yemen, Iraq, or otherwise. The president decides on the suspension of habeas corpus, assassination of American citizens abroad, torture, warrantless interceptions of emails or phone calls, military commissions denuded of procedural safeguards, a state secrets privilege to conceal constitutional wrongdoing, and life imprisonment for suspected enemy combatants without accusation or trial. Congress approves the president's national security proposals with the stupor of the Russian Duma. If the matter is in doubt, the president circumvents Congress with executive agreements like the outstanding Status of Forces Agreement with Iraq.

On the domestic front, if Congress balks at spending extravagance, the presidentially appointed Board of Governors of the Federal Reserve Board unilaterally prints trillions of dollars to purchase treasury securities to better the legislative instruction of TARP or stimulus appropriations. If Congress declines cap-and-trade legislation to restrict greenhouse gas emissions, the presidentially appointed director of the Environmental Protection Agency accomplishes the same through rule-making. Obamacare and the Dodd-Frank Wall Street Reform and Consumer Protection Act leave the executive branch with the lion's share of policy decisions through unguided legislative delegation.

The president enjoys a virtual monopoly on government information. Members know only what the president chooses to disclose, plus leaks to the media. Presidential aides defy congressional subpoenas with impunity. Information is power. Thus, Congress salutes whenever the president--either truthfully or deceitfully--declares emergency action is required based on information known only to him.

Last November, voters sharply repudiated President Obama's agenda at the polls. More than 60 new Members were elected to the House of Representatives. Yet the next House Speaker, John Boehner (R. Ohio), quickly conceded that the president would continue to set the agenda. In other words, the more things change in Congress the more government stays the same because the president sits atop the commanding heights of power. Tea Party freshman will discern their ornamental lowliness when their phone calls to Executive Branch officials are routinely ignored.

Members of Congress have abdicated their constitutional responsibilities because of slavish devotion to party loyalty over institutional prerogatives; staggering constitutional illiteracy; a vassal-like conviction that the executive branch knows best; and, a craving to decide nothing to avoid creating issues for would-be challengers. But the constitutional powers of Congress to re-establish equilibrium with the president remain unimpaired. All that is needed is for Members to honor Ten Congressional Commandments.

The Constitution exclusively empowers Congress to authorize the initiation of war under Article I, Section 8. The Founding Fathers constitutionally precluded the president from deciding on war or peace because of the executive branch's incentive to exaggerate danger. War crowns the president with fame, secrecy, spending, and arbitrary powers over the citizenry.

Congress is constitutionally entitled under its legislative and oversight responsibilities to access information in the executive branch relevant to any legitimate congressional function. Members should assert their power through issuing subpoenas, voting contempt of Congress citations, or exercising the power of the purse. The informing function of Congress is its most important. Government by the consent of the governed is a hoax unless the people know what their government is doing. And sunshine is the best disinfectant against executive maladministration or wrongdoing.

Congress should hold any executive branch official who conceals information from Congress or defies a congressional subpoena to be in contempt subject to a personal fine of $100,000 payable from personal funds for every day of contempt. The United States Supreme Court sustained the power of Congress to punish contempt of its authority in McGrain v. Daugherty, 273 U.S. 135 (1927).

Under the Constitution, only Congress may authorize the president to place U.S. citizens on assassination lists for alleged complicity with foreign terrorist organizations by obtaining a judicial warrant based on probable cause to believe the target is an imminent danger to the life or limb of an American. The Founding Fathers did not trust any single man to be judge, jury, and executioner.

The Constitution's treaty power (requiring treaty ratification by a
2/3 Senate majority) must be employed in lieu of executive agreements to create United States military commitments (including arms control agreements) to foreign countries.
The Founding Fathers did not believe the treaty power could be safely entrusted solely to the president, as Alexander Hamilton explained in Federalist 69.

Only Congress is empowered to define and delimit the scope of the state secrets privilege, which denies victims of constitutional wrongdoing a judicial avenue of redress.

Under the Constitution, laws passed by Congress (whether one page or thousands of pages long) must be either approved or vetoed in their entirely by the president, a conclusion that commanded the ready consent of President George Washington. Presidential signing statements that assert the intent of the executive to disregard portions of signed laws it believes are unconstitutional are tantamount to absolute line-item vetoes declared unconstitutional by the Supreme Court in Clinton v. New York.

Only Congress is constitutionally empowered to fashion the fiscal and monetary policies of the United States under Article I, Section 8. The power may not be delegated without intelligible standards to the Federal Reserve Board, composed of seven Members appointed by the president with the advice and consent of the Senate for 14-year terms, or the president.

Only Congress is constitutionally empowered to establish a policy for greenhouse gas emissions or global warming under Article I, Section 8 or to write rules for Wall Street or Consumer Protection. Congress is prohibited passing the buck for these profoundly important issues to executive branch agencies shielded from direct popular accountability.

Congress must impeach and remove from office any president who intentionally usurps or circumvents any of the forgoing constitutional powers of Congress or neglects faithfully to execute the laws enacted by the legislative branch. The Founding Fathers defined an impeachable offense as a crime against the Constitution, and listed as an example a president's intentional deceit of Congress to obtain its consent to legislation ratification of a treaty. A neglect faithfully to execute or honor the laws is also clearly an impeachable offense. That indictment was at the heart of impeachment proceedings against Presidents Nixon and Clinton.

Congress may stumble in exercising its constitutional responsibilities. Government is more an art than a science. But the thrill and dignity of self-government, warts and all, make the Constitution worth defending.