August 21, 2012

Jerry Brito Discusses the Executive Branch's Regulatory Power and Overreach

Jerry Brito

Former Senior Research Fellow

If Congress is truly concerned about a president enacting laws that it has chosen to reject, it should reconsider regulatory powers it routinely extends to the executive. On the other hand, if Congress continues to expand the power of the regulatory state, there might come a time when there indeed is nothing the president can't do unilaterally.

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Earlier this month, the Senate voted not to pass a bill, backed by the Obama administration, that would have imposed cybersecurity regulations on private computer networks. A day later, the White House announced that it was considering issuing an executive order to accomplish many of the failed bill's goals. One wonders why we have a Congress at all.

It would not be the first time President Barack Obama takes unilateral action to accomplish what Congress has chosen not to do. Under the banner of "We Can't Wait," the president has issued aseries of orders to bypass lawmakers whom he sees as obstructionist. Many in Congress have denounced the president's actions as an unprecedented power grab, but in some respects, they are the ones who gave him the sweeping powers he is now exercising.

The president has acted to ignore Congress in two ways: One way employs power vested in him by the Constitution, the other power given to him by Congress.

The first is by exercising discretion in how the laws are executed. After the DREAM Act failed in Congress, Obama directed immigration officials in the executive branch to exempt from enforcement undocumented persons who came to the United States as children. While the specifics of the order are questionable, the executive certainly has the authority to prioritize how limited enforcement resources are employed. Choosing to pursue violent illegal immigrants first, for example, is within any president's power. In doing so he is not creating new law over Congress's objections, but merely exercising discretion about how to best execute existing laws.

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