There's lots of discussion back and forth on various blogs on the executive power debate generating lots of commentary about whether its the dictatorial executive or the do nothing legislative that bears responsibility for the current standoff. I'd like to argue that its largely the fault of the legislative but it has very little to do with the current Congress and a lot to do with the evolution of Congressional action over time.
In my view, it is in fact the case that the Congress is responsible for the rise of the executive state. Since at least the 1970s, Congress had gradually walked away from actually passing laws and more and more toward passing grants of executive authority. You can see this in the past in acts like the Clean Air Act (although I'd argue those who wrote it never foresaw its current application) and today in acts like the ACA and Dodd/Frank. The latter two acts were more or less massive grants of authority to the executive to "figure it out later."
Congress will claim that this is necessary due to the complexity of implementing these programs. But rather than letting it stop them, they have every incentive to keep doing so. They are allowed to duck responsibility for the legislation they write. Look at the outcry over the various implementing regulations around the ACA. Few/no Congresspeople are in trouble because of these largely because voters will "blame" the administration. And Congresspeople get to do it too. To take a simple example, Congress could have/should have expressed a point of view on what broad categories of benefits should be included in "minimum" coverage but they chose not to, not because they couldn't but because they didn't want to take the heat for doing so.
In broad strokes then, Congress over time has invited the executive to take control of the government. And, over successive Presidencies, the executive has been only too happy to do so, realizing over time, that as long as they control 40 percent of the votes in the Senate (to give a margin for error), there is more or less no brake on executive power.
Sure, in my view at least, President Obama has gone further than his predecessors but he is simply continuing a tradition that was <i>created by Congress</i>. The administration (this one or any other) didn't take this power, it was handed it by Congress. Yes, the executive is doing even more than Congress intended but it's a question of degree rather than kind.
Until such time as the people begin to force Congress to pass real legislation as opposed to simply passing something that says in effect "the administration will write whatever rules it feels like as long as they relate to topic X," there is simply no hope. Executive power will continue to increase because Congress will continue to hand over power to the executive.
This is a bipartisan problem and really does require a bipartisan solution but, to be honest, I have no hope that such a thing will happen.
In closing, let me point out that I also think this change explains the increasing polarization in DC and in the country. In a world where Congress doesn't decide anything, there is no outlet for the citizens to sort out their differences. Executive fiat is not a good way to do compromise and yet, increasingly that is what we are reduced to.
Again, it is in the hands of Congress, not to compromise with the President or to do his will but to force the executive to do its will, not by silly lawsuits or threats of impeachment but by writing clear bills that do something clear, not long fuzzy bills that are impossible to understand. Will that potentially limit Congress's ability to affect major policy changes? For a time it might. But, in the long run, we would be a far better country for it.
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