A Post-Constitution Day Note About Presidential Contempt for Democracy

Brian Tamanaha

Section I of Article I of the Constitution is a model of brevity and clarity: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives."

A website dedicated to educating kids about the constitution emphasizes that in our system, consistent with the language of Article I, the legislature alone makes the law: "our head of state, the President, has no power to make laws." We have come a long way from the days of Roman law, which held that "What has pleased the prince has the force of law."

This often-told story makes us feel good about our democracy, but it's a big fat fiction that leaves out of the account our vast body of administrative regulations. Don't be fooled by the label "regulation" into thinking it is not "law." Regulations specify binding obligations and often come with civil and criminal penalties. And the notion that regulations are still "democratic" (indirectly) because they are authorized by Congress and subject to congressional override is a stretch that is convincing only to theorists who prefer abstraction over reality.

Here's our democracy in action (as reported by John Broder in the New York Times):

...now President Bush has his cabinet and staff busily writing far-reaching rules to keep his priorities on the environment, public lands, homeland security, health and safety in place long after the clock strikes midnight and his presidential limousine turns into a pumpkin.

With Congress in Democratic hands and his political capital all but spent by the Iraq war, Mr. Bush has scant hope of pushing significant domestic legislation through Congress. But he still controls the executive branch and can still accomplish much through regulation and executive edict.

That sounds a lot like "what pleases the prince has the force of law." As Broder notes, many incoming presidents have complained about last minute acts of regulatory law making by their predecessors, but then in turn commit the same offense when leaving office.

"Every administration does it," said Susan E. Dudley, head of the Office of Information and Regulatory Affairs, the White House agency that oversees rule making throughout the executive branch. "It doesn't matter the party the president comes from or who controls Congress. While I'd like to say this administration won't, I have to accept that we'll likely see an increase in activity toward the end of our time here."

Dudley's expressed reluctance about the impending burst of final hour law making is odd and implausible. Nothing is forcing the Bush Administration to engage in the same actions it criticized the Clinton Administration for (Broder suggests that Dudley, who joined the White House "from the pro-business Mecatus Center at George Mason University under a recess appointment," was one of the critics).

Ms. Dudley, an expert on government who has studied the midnight regulations phenomenon, said that she hoped to avoid what she called the "slapdash" approach of the Clinton administration after the 2000 election.

"It may be that an increase in regulatory activity is inevitable at the end of an administration," she said, "but we're determined to do it right, based on the best science and the best technology, with ample opportunity for the public to get involved."

Sure, sure--unlike their predecessor--they'll "do it right" when they set in place a bunch of laws on their way out; it might help her credibility if she explained why this practice is seemingly inevitable (and please don't suggest that all those regulations took seven years to prepare).

Apparently the temptation to behave like a Prince is too great to resist.

It is one thing to acknowledge that owing to the complexity of modern life we need the regulatory system and must therefore accept the democratic deficit it entails. But an effort at the close of an administration (Clinton, Bush, or any other) to issue regulations that further a particular political agenda oozes of contempt for democracy.
Posted 9:56 AM by Brian Tamanaha [link]