Many have traced the end of the constitutional republic the Founding Fathers gave us to the ratification of the 16th and 17th Amendments. The former allows the federal government access to its own revenue stream that is politically painless to extract. It turns the constitutional relationship between state and federal government on its head by making the states dependent upon federal largess rather than having the federal government as a client of the states. The latter amendment, the 17th, makes the US Senate a House of Representatives that serves a 6 year term. A Senate elected by state legislatures safeguarded state prerogatives in the Congress. I would also argue that another villain is the 19th, haha, just joking, rather the 22d Amendment which makes the second term of any president a lame duck administration.
But the real issue has been the sheer laziness of the Congress.
Congress isn’t merely a “co-equal” branch of government. It is the superior branch of a clever hierarchy created by the Constitution. The House was to be elected by the People and the Speaker of the House is third in line to be president. The House controls revenue bills. The Senate represents the States and their interests in the Federal system. The Congress is the only branch of government that can remove an official from office in another branch for basically any reason it sees fit.
The President (it is not Article II by accident) is not elected by the people. The president is elected by the states (electors) after ratification of that result by the Congress. In fact, electoral votes can be challenged in this joint session and the challenge adjudicated by a vote there. This clearly establishes that the President is a creature of the States and the People acting through the Congress.
Similarly, the Judicial Branch is a total creation of Executive and the States. The Congress decides the number of judges and how much they will be paid. The US Constitution clearly allows the Congress to remove some areas of law from oversight by the courts.
But to do its job properly, Congress would actually have to work a five-day week. Rather than actually do anything the Congress has taken the path of least resistance, do nothing, and allowed the resulting vacuum to be filled by the federal bureaucracy and the federal judiciary. In 1946, Congress passed the Administrative Procedures Act. This Act allows federal agencies, not the Congress, to establish “rules” which carry the force of law, rules which can deprive you of liberty and property just as effectively as any act of Congress and rules against which you are largely defenseless. It is APA which has allowed the EPA to regulate lawnmower emissions. It is the APA that has allowed the EPA and Army Corps of Engineers to call any vaguely defined mud puddle a “wetland” or “inland waterway.” It has also allowed federal courts to make new law and to contort existing law to the extent that it can’t be recognized. Roe v. Wade and Lawrence v. Texas both created new law out of whole cloth, invalidating existing state law, not to mention a couple of thousand years of Western Civilization and common decency. The “evolving standard of decency” nonsense in Eighth Amendment jurisprudence is an offense to commonsense. Hamdan v. Rumsfeld ignored the actual black letter of the law and established a review authority for federal courts where Congress had declared none existed. Every judge or justice who voted in favor of that decision should have been impeached.
The only way Congress has of reining in either an Executive or Judicial branch run amok and hellbent on governing as it sees fit is via impeachment and, because it requires both decisiveness and work, Congress is reluctant to use it. If you are a judge and you sell decisions at auction in open court on television you MIGHT get impeached. If you ignore Congressional subpoenas and obstruct justice while killing random citizens in two countries, like Eric Holder, then you can pretty much skate.
In what one hopes in not merely an election year stunt, the House of Representatives may actually be on the verge of impeaching IRS Commissioner John Koskinen. If this is true and isn’t another episode of Failure Theater, it could signal a change in the way things are done:
The House Judiciary Committee’s decision to hold hearings a week from today on whether to impeach IRS Commissioner John Koskinen is a victory for the chamber’s far-right caucus, still smarting over the agency’s treatment of conservative groups.
Over five years, House Republicans have slashed the IRS budget, passed bills banning employee bonuses and prohibiting employees fired for misconduct from getting rehired. The GOP has vowed to simplify the tax code, pounced on agency management failures and assailed customer service failures caused by the budget cuts.
And last week, anti-IRS lawmakers convinced previously hesitant House leaders to start the unusual process of removing the tax collector from office.
The second graf, alone, tells you what kind of a crap hole the IRS is. It is virtually unheard of for Congress to crack down on any single agency to that extent because of their general lawlessness.
The GOP’s seven-month effort to oust Koskinen, whose term does not end until November 2017, is nonetheless a long shot, experts say, given the short congressional calendar remaining before the November elections and procedural hurdles.
Impeachment of an agency leader is rare. The last time Congress brought similar articles of impeachment was in 1876, after the House uncovered evidence of a pattern of corruption by War Secretary William Belknap.
The two congressmen leading the charge for impeachment, House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) and Rep. Jim Jordan (R-Ohio), chairman of the hard-right House Freedom Caucus, had for months received little traction with Speaker Paul D. Ryan (R-Wis.) and Judiciary Committee Chairman Bob Goodlatte (R-Va.), But things have shifted, at least partway.
“A lot of people have to warm up to the idea” of impeachment, Chaffetz acknowledged in an interview. “But we’re not letting go of this one.”
As the article says, the time available to do this is limited but the real proof will be the energy applied to the process. If Chaffetz and Jordan make an honest effort to remove Koskinen then it will not go unnoticed to other committee chairs, who would like to be be taken more seriously by everyone than they are, and to agency heads, who would mostly like to avoid drawn out range wars with members of congress.
Under Obama we’ve seen that a determined president with no compunction about violating the law can do much as he desires and it will be virtually impossible for Congress to stop him. Impeaching of agency heads is the only possible way to restrain such a president. But if Congress accepts the status quo, of which Koskinen is not even the worst example, then it signals that Congress is a meaningless institution and we are ruled by a battalion of unelected judges and bureaucrats.