Jun

10

The greatest Constitutional crisis:

The actual language of the Constitution gives Congress the exclusive power of legislation and its enforcement; the President only has the power to veto legislation and to act as Commander-in-Chief. Until the Civil War/WBTS this was never questioned. Cabinet Secretaries reported to their Congressional committees, not to the President. This tradition continued throughout the war; the President appointed commanders but Congress and the Committee on the Conduct of the War looked over his and Stanton's shoulders every day.

If Scott and Pete and our other Mises-istas want to find the roots of our present clerical tyranny in that period, they should not blame Lincoln but look to my hero, President Grant, who established the precedent that cabinet officers would serve at the pleasure of the President, not the Congress. Grant's reputation for "corruption" stems from this; by establishing an actual Civil Service, he not only pissed off every Congressional chairman by taking away his patronage but also began the investigations that discovered the Congressional cheating. (Once again, no good deed goes unpunished.)

But Grant never presumed that he and his Cabinet members had the authority to write quasi-laws through regulation except for the military under the President's authority as CIC; for all other areas of law the legislative authority remained entirely with Congress. Presidents who wanted to extend their imperial authorities had to find justification for their actions by relating them to war; Wilson's literal nationalization of the U.S. economy was upheld using the justification that Congress had given him that authority by approving a formal declaration of war. Franklin Roosevelt used the same rationalization for nationalizing the country's gold (the Trading with the Enemy Act), but even his administration's efforts at bureaucratic tyranny were hopelessly mild compared to what followed and they were subject to serious judicial review. (Under our current rules for administrative law the cases challenging every New Deal rule-making would not have been struck down by the Supreme Court; they would have been considered "reasonable" exercise of Presidential authority.)

If you want to look for villains, I suggest 2 Democrats (Truman and Johnson) and 1 Republican (Nixon). Their enthusiasm for the Administrative Procedure Act and Code of Federal Regulations (all to be justified in the name of the Cold War) has spawned the Orwellian nightmare that we keep trying to pretend is nothing but a temporary fright.


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