Perhaps you have strong feelings about President Obama’s announcement this week that the federal government will begin calling Mount McKinley – the nation’s highest point – “Denali,” the name that’s preferred by native Alaskans. I’ll be honest with you: I don’t care.
It seems to me that the locals should get to call it whatever they want. What does bother me a little bit: That we now live in a country where presidents go around renaming mountains by decree. That kind of behavior has historically been the preserve of political leaders who wear epaulettes in public.
The mountain’s name is insignificant in the grand scheme of things, but the way the title changed – through a unilateral edict from the Department of the Interior – underscores one of the most corrosive elements in the federal government today: the accretion of excessive power in the executive branch.
Recall your elementary school civics (if you came of age in the halcyon days when such things were still taught): There are three branches of the federal government, each with distinct purposes. The legislative branch makes the laws. The judicial branch interprets the laws. The executive branch enforces the laws.
I’m unaware of a definition of “enforces” broad enough to be read as “unilaterally renames a big pile of rock and snow.”
The Denali dustup is a somewhat comic example of a trend that is otherwise deadly serious.
Take a look at some of the biggest policy shifts from President Obama’s second term: the decision to stop enforcing a broad swath of federal immigration law; the EPA’s efforts to regulate carbon emissions; the delayed implementation of some of the most destructive parts of Obamacare. What do they all have in common? They were each products of the executive branch, not the work of the legislators we actually elect to make our laws.
This problem runs much deeper than the president. At least there can be political or electoral consequences when the chief executive takes matters into his own hands. But the deep, dark secret of modern American government – and the fact that is essential for any informed voter to understand – is that we are increasingly governed by people we have no capacity to check.
More and more federal law comes out of the executive branch bureaucracy – people for whom no one ever voted – rather than from our elected representatives in Congress.
As University of Washington law professor Kathryn A. Watts noted in a Georgetown Law Journal article this year, “The bulk of new legal norms today are not set forth in newly enacted statutes. In the 112th Congress, just 284 bills were enacted into law, and in the first session of the 113th Congress, just 72 bills were enacted into law. In contrast, in 2011 alone, more than 3,800 new rules were published in the Federal Register, and in 2012, more than 3,700 rules were published.”
If you’re keeping score at home, that’s 7,500 new aspects of federal law that you can fall afoul of despite the fact that you never cast a ballot for or against any of the people who enacted them. So much for the consent of the governed.
Part of the problem here is a docile Congress that’s more than happy to hand off its authority because it gives members fewer votes to defend when it comes time for re-election. But another, of course, is presidents who delight in seeing the limits on their power grow ever weaker.
As a practical matter, frustrated voters should focus more on the latter than the former. Trying to find hundreds of new members of Congress who want to reclaim their rightful place in the constitutional order is a daunting task.
All we need, however, is one president willing to upend the status quo.
Is the country capable of producing a statesman willing to give up some of the powers of his office for the greater good? Let’s hope so. The future of the country, and the Constitution, depends on it.
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