The Most Effectual Weapon Against Executive Overreach: The Power Of The Purse – Guest Essayist: Senator Mike Lee

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In addition to the power to enact important reforms like the REINS Act and the USA Freedom Act, Congress has another time-honored power to exercise when it needs to stop an overreaching executive. It is a power wielded far too infrequently in recent years. And it is a power that James Madison described in Federalist 58 as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Madison was talking about the power of the purse. Without congressional approval, no federal program can be funded, and without funding, no program can be implemented. By simply refusing to fund a president’s unconstitutional conduct, Congress can stop him dead in his tracks— even after courts have abdicated their responsibility to do so.

I was reminded of this principle on July 2, 2013. I was in my office in Salt Lake City when a member of my staff told me to turn on the news. What I saw was shocking. According to the report, President Obama had decided to delay Obamacare’s “employer mandate,” which requires many businesses to provide their employees with health insurance. Even though the legislation pushed through Congress and signed into law by President Obama himself required the employer mandate to kick in at the beginning of 2014, the president was delaying this provision’s effective date by a year.

There was absolutely no statutory authority in Obamacare permitting the president to rewrite the provision pre-scribing the starting date for the employer mandate. Nor did President Obama have any inherent constitutional authority to do so. Quite to the contrary, the Constitution’s text and structure make clear that a president lacks the authority to rewrite legislation unilaterally, i.e., without any action by Congress. The first clause of the Constitution’s first article is as simple as it is clear; it provides, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In other words, the power to legislate— that is, the power to make law— belongs to Congress. When the president rewrites acts of Congress, he usurps Congress’s “legislative powers,” upsets the Constitution’s balance of power, and turns citizens into subjects by denying their directly elected representatives the exclusive authority to make the laws that govern their lives.

Congress needed to use its “most complete and effectual weapon”—its power over the federal purse.

By late September 2013, America’s political leaders had a choice to make. If October 1 arrived before Congress funded the government for the next fiscal year, countless federal programs would run out of money. The question was: Would Congress pass a spending bill amenable to the House, the Senate, and the president before October 1, and would such a measure include funding for Obamacare?

The question was complicated by an obscure but remarkably significant change in how Congress has allocated funds in recent years. Congress has historically funded the federal government first by passing a budget and then by enacting a series of spending measures (a dozen or so), each of which appropriates money for a different government function (e.g., defense or transportation). When Congress follows this time-honored process, each spending measure is independently proposed by a committee, debated on the floor, amended, voted on, and sent to the president for his signature. This process has a way of keeping spending discussions in Congress focused. For example, it helps create an environment in which decisions regarding defense-related spending will be influenced by concerns related to national defense, not national parks, and decisions regarding national parks will be influenced by concerns related to national parks, not national defense.

Had Congress simply followed its own appropriations process, it would have been far easier to have an open, honest debate regarding the merits of Obamacare.

Congress, however, has been disregarding that process since 2009. Instead of budgeting and then proposing, debating, amending, and passing a series of smaller spending bills, Congress has been keeping the government funded through a single, enormous, all-or-nothing spending package. If the giant bill becomes law, the government stays funded. If it is voted down or vetoed, some of the government shuts down.

This flagrant departure from the traditional budgeting and appropriations process has put our country on a collision course with disaster. Congress routinely spends money it doesn’t have— creating trillion-dollar deficits— because senators and congressmen are afraid to vote against an all-or-nothing spending package, knowing that its defeat could result in a government shutdown. Meanwhile, meaningful oversight of the executive branch has become impossible because, without voting against funding the entire government, members of Congress can no longer say, “Hey, you’re running this particular program poorly, so we’re going to cut back on funding it until you get your act together!”

By late 2014, after President Obama had repeatedly usurped Congress’s authority and rewritten Obamacare dozens of times, it was clear that we were not well positioned to stop his assault on the Constitution. At least for the time being, he had won, and we had lost; rule by executive fiat had won, and the separation of powers had lost; the transformation of the relationship between the government and the governed had won, and the Constitution’s creation of a federated structure with enumerated and limited powers had lost.

This was, however, only a single battle. The larger war for the Constitution goes on. As long as our government remains in the hands of fallible humans, some of them will seek perpetually to expand and even abuse their power. At the same time, the Constitution will stand ready to restrain those individuals and protect our liberty— if only we are willing to fight for it.

Reprinted from Our Lost Constitution by Senator Mike Lee with permission of Sentinel, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Copyright (c) Mike Lee, 2015.

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5 replies
  1. Ron
    Ron says:

    Until this essay, I was unaware of what the process was and of how the process has changed – and I’m one who tries to understand what’s going on. There are many others who aren’t even trying to understand the complexities of managing the affairs of our Republic. It reminds me of Madison’s warnings in Federalist 62 about laws becoming so voluminous as to not be understood by anyone.

    “We the People” are so busy with other matters of personal importance that we haven’t made time to better understand these “living Constitution” micro-changes to our governing document. Reading this, I wonder if many of our Republican members of Congress have willingly sacrificed their courage for political expediency. If they have, then “We the People” have no one doing the job we sent them to Washington to do. We sent them there to fall on their swords, if that is what it takes to defend our nation’s longer-term interests.

  2. Jim Sykes
    Jim Sykes says:

    Today’s essay is from his new book “Our Lost Constitution” and everyone should make an effort to read his book. It covers what we should do to return to the original principles established by our Founders. If we return to our founding principles we would not need to amend the constitution and we certainly would not need an Article V Convention. Instead of continuously trying to amend, why not try to return to the principles that made the United States of America the gratest country to ever exist.
    You might also be surprised to learn the history that resulted in the loss of our religious freedom in our schools and public places.

    • Bruce Anderson
      Bruce Anderson says:

      Good point , a restore of its principle would be the education of its facts some what starting in the courts by direction of the Legislators or the congress in the courts and by the directives of the Congress enforcing the function to removal & prevent officials from holding office more then done as I understand was to e some of the fall safe grosley over looked Amendment 14 section or Article 1 section 5 , Which alot of it seams to go back to about the time of the start of would war two and a grossly mis used form of Marshall laws to create and abuse subcommittees and or agency’s by mis use of false powers by appointees as we have seen with say DOJ to the BATF to the fcc to the epa and even the fda and thing called Admin law Citing Philip Hamburger, “The History and Danger of Administrative Law,” A Publicaton of Hilldale College, Impris, September 2014 , Seams as if some it is the General May Be its the perspective on the type of system we are Citing, he says the most important job in a democracy is the job of citizen CHICAGO (AP) — President Barack Obama has cast his vote early for the 2014 midterm elections

      Democracy v/s, Constitutionally elected Representative republic of inalienable rights et al.Our military training manuals used to contain the correct definitions of Democracy and Republic. The following comes from Training Manual No. 2000-25 published by the War Department, November 30, 1928.
      Just after the completion and signing of the Constitution, in reply to a woman’s inquiry as to the type of government the Founders had created, Benjamin Franklin said, “A Republic, if you can keep it.”

  3. Bruce Anderson
    Bruce Anderson says:

    state and or even Congressional level has dragged its feet with justifiable impeachment removal and prevent to retain official office of violators Amendment 14 section 3 Article 1 section, As like With Immigration where Obama knowingly carry out Constructive treason thus the states willingly upholding it where they have no right, Federal Immigration and Nationality Act Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) “Any person who encourages or induces an alien to reside knowing or in reckless disregard of the fact that such residence is in violation of law, shall be punished as provided for each alien in respect to whom such a violation occurs fined under title 18 imprisoned not more than 5 years, or both, May Be its the perspective on the type of system we are Citing, he says the most important job in a democracy is the job of citizen CHICAGO (AP) — President Barack Obama has cast his vote early for the 2014 midterm elections

    Democracy v/s, Constitutionally elected Representative republic of inalienable rights et al.
    Just after the completion and signing of the Constitution, in reply to a woman’s inquiry as to the type of government the Founders had created, Benjamin Franklin said, “A Republic, if you can keep it.”

    • Bruce Anderson
      Bruce Anderson says:

      The lower court have do some yet could do more to hold to account officials in violation of mis following the false directive in the support . for Violations of Separations of Powers , Alliance and treaties clause , The Question Was does the state Level Legslator or even the congressional head not where they have the power and right Amend 14 section 3 or Article 1 section 5 for the acts of constructive treason and or surrendering America to invading forces
      Citing Kearns Executive Orders functions: Executive orders are not mentioned by the Constitution. EO’s are NOT law. “In Article I Section I of the Constitution we learn that all legislative powers reside in Congress. The executive branch has the responsibility to execute the laws passed by Congress. An executive order is not legislation. It is an order issued by the president to enforce laws passed by Congress.
      This is backed by the declaration that the president ‘take care that the laws be faithfully executed’ made in Article II, Section 3, Clause 5. Thus, executive orders can only be used to carry out the will of Congress (which is only supposed to be passing laws in line with the Constitution), and not to issue new policy.” A typical EO might instruct the government to do no business with a country we are at war with. Executive orders ARE subject to judicial review, and can be declared unconstitutional.
      Congress is still letting EOs pass without actively stopping them. As they arre subject to judicial review, they can and should be (like the gun control EOs) declared unconstitutional and unlawful. A local (City) appropriately appointed judge can overturn any Executive Order as unconstitutional, illegal and uninforceable. If your state doesn’t have a State Defense Force – start one now! Michael Boldin on the Tenth Amendment Center news media WND 2012.


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