GERGE WILL: Four ways Congress could restore itself
Sometimes, Oliver Wendell Holmes said, “we need education in the obvious more than investigation of the obscure.” Obviously the national institution most in need of repair is Congress. Herewith are four measures by which the 118th Congress can begin reversing the institution’s decades-long self-diminishment.
Passing the Separation of Powers Restoration Act would end congressional deference to “Chevron deference,” the Supreme Court doctrine named for a case in which the court said judges should defer to administrative agencies’ “reasonable” interpretations of “ambiguous” laws. Congress might consider not writing such laws. Pending that miracle, Congress should, with SPRA, require courts to interpret statutes rather than leaving this to bureaucracies, which have powerful incentives to make expansive interpretations that maximize their power. As Justice Brett Kavanaugh has written, Chevron deference often is “a judicially orchestrated shift of power from Congress to the Executive Branch,” and “encourages agency aggressiveness.” SPRA, by identifying judicial deference as dereliction of the judicial duty to say what the law is, would strengthen judicial supervision of the administrative state.
In 2017, the House passed SPRA with a bipartisan majority, 238-183. What were the 183 thinking? Why had they toiled so strenuously to get to Capitol Hill if they are uninterested in stanching the leakage of power that has trickled down from there to the executive branch?
Second, the new Congress should pass the Regulations from the Executive in Need of Scrutiny (REINS) Act. It was said that Winston Churchill’s ancestor the Duke of Marlborough, when writing letters, would not dot his “i”s in order to economize on ink. One does not expect parsimony from Congress, but REINS would require congressional fingerprints on, and might thereby reduce the number of, “major” regulations. These involve government-compelled spending by private-sector entities, spending with an annual economic impact of at least $100 million.
The end of Chevron deference would encourage Congress to make its intentions clear. REINS would require Congress to shoulder more responsibility for governance. Again, the obvious. Knute Rockne, Notre Dame’s fabled football coach, said, “I’ve found prayers work best when you have big players.” And Congress works best when it is required to work.
It often works less when, you might think, it should be most engaged: during an “emergency.” Speaking of which, how are you, dear reader, coping with the stress of life during 42 simultaneous emergencies? That is how many have been declared and never terminated by recent presidents. These executives triggered the expansion of their powers under some of the 136 laws by which Congress has authorized special powers for the president when he or she declares them needed to cope with an “emergency” that he or she has discerned.
An actual emergency, an event that requires an instant augmentation of the president’s power to act unilaterally, is a sudden surprise requiring quick executive nimbleness. If the event persists, it becomes just a problem, which should be dealt with by normal government processes. So, a third matter Congress should address is the emergency of “emergency abuse.” Several senators have proposed bills to do this. One from Sen. Mike Lee (R-Utah) stipulates that a declaration of national emergency shall last for 30 days “and shall terminate when that 30-day period expires, unless there is enacted into law a joint resolution of approval.”
The three items above pertain to government processes. A fourth concerns a substantive policy. Last week, Rep. Virginia Foxx (R-N.C.), likely the next chair of the Education and Labor Committee, said the obvious: Many colleges and universities are becoming “temples to a single political dogma,” and are “zealously devoted” to advancing ideological agendas. Academic administrators “either brazenly push their own agendas or walk on eggshells in fear of their own student body.” Members of her committee have, she said, “multiple bills to promote and protect” free speech and inquiry on campuses.
Congress’s core power, of the purse, entails an obligation to ensure that federal money does not fund practices inimical to constitutional principles. Defenders of those, who have uttered Voltaire’s prayer (“O Lord, make my enemies ridiculous”), had this prayer answered, yet again, last week: Stanford’s “Elimination of Harmful Language Initiative” advised, among many other hilarities, against identifying Americans as “Americans,” lest there be hemispheric sadness, or something. Too often, however, academia’s itch to fine-tune speech and other behavior slides from ludicrous nitpicking into sinister enforcement of orthodoxies. Congress should say: We will fund only institutions that content themselves with being ludicrous.