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Why We Need A New Constitution: Part 8 of 21

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The previous article on the theme of the separation of powers and accountability ended with a quote from a New York Times piece on how government is continually evading responsibility. This article now continues...

In 1987, Congress established a comprehensive program of assistance to homeless people. But recently Federal District Judge Oliver Gasch accused the Administration of a 'complete failure' to comply with the law, saying 'pitifully few' unused Federal properties had been made available to assist the homeless. . . .

The Government has yet to issue final regulations for cleaning up waste storage sites under a 1984 law. As a result, thousands of companies are operating 'under a cloud of doubt and uncertainty,' said Theresa Pugh, director of environmental quality at the National Association of Manufacturers.

'There are a million ways for recalcitrant Federal agencies to vitiate a law,' said Representative Ron Wyden, Democrat of Oregon. 'It is extraordinarily frustrating. Contrary to what civics textbooks might suggest, passing legislation today is just the very first step. After that, you have to run through a veritable gauntlet of administrative processes and procedures to get the law carried out.'

The Reagan Administration sometimes used administrative delays as a device to enforce its philosophy of less government and to save money, and Congress responded by imposing more specific mandates and tighter deadlines, creating a cycle that aggravated the problem. . . .

Congress, lobbyists, the White House and millions of Americans typically focus on legislative battles, assuming that a bill takes effect when signed by the President. But the partisan sparring over legislation often continues long after it is signed into law.

James M. Strock, enforcement director of the Environmental Protection Agency from 1989 through this February, said the delays led to a vicious circle: When Congress feels that an agency is is moving too slowly, it sets deadlines. The agency fails to meet them, generating further disappointment and distrust on Capitol Hill. So lawmakers set tighter deadlines and more detailed requirements, which the agency finds even more difficult to meet. . . .

Disagreements over new laws are common after a decade in which Republicans controlled the White House and Democrats dominated Congress. Regulations can be written to distort or even to thwart the intent of Congress. To prevent such abuse, Congress writes highly prescriptive laws that read like regulations.

Even when an agency is eager to carry out a new law, it must negotiate with the Office of Management and Budget, which often demands changes in proposed rules to reduce the cost or to minimize the burden on private industry. Congress itself may not provide the money needed to carry out or enforce a new law. . . .

Michael J. Horowitz, counsel to the director of the Office of Management and Budget from 1981 to 1985, said Reagan Administration officials often viewed 'nonenforcement of the law' as an easy way to deal with statutes and regulations they disliked.

Federal courts recently criticized the Federal Trade Commission for failing to carry out a simple 1986 law that required health warnings in all advertisements for snuff and chewing tobacco. The commission exempted advertisements on promotional products like T-shirts, beach blankets, baseball caps and coffee mugs.

The law prescribed the exact text of the warnings, which said, for example, 'This product may cause mouth cancer.' The F.T.C. argued that people would misread such warnings to mean that T-shirts and beach blankets caused cancer when they were emblazoned with advertisements for tobacco.

In a study of the Medicaid program, Eleanor D. Kinney, a law professor at Indiana University, found that Federal officials issued rules rapidly 'to implement executive branch initiatives.' But she said officials were 'quite slow' to publish rules needed to carry out laws opposed by the Administration. Thus, she said, rules intended to save money were issued promptly, while rules expanding health care benefits for children and pregnant women were delayed. . . .

Representative Henry A. Waxman, Democrat of California, said, 'The E.P.A. often produces carefully considered regulatory proposals, based on an extensive record and lengthy studies, only to see them dismissed out of hand by White House officials eager to protect industry from the cost of regulation.'[1]

Note that our current Constitution, as it exists in practice, is in effect a polycameral Government. What began as a separation of powers developed into a blending of powers, with Legislative power gradually coming to be vested in the Executive Branch. This development has led to the demise of yet another critical Principle: the Principle of Majority Rule.



[1] "U.S. Laws Delayed by Complex Rules and Partisanship," The New York Times, March 31, 1991, p. A-1.

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Barry Krusch is president of Intelligent Communities, Inc., sponsors of The Intelligent Community Initiative. He is also author of 2 books, The 21st Century Constitution and Would The Real First Amendment Please Stand Up?
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