In February of 1810, the British cargo brig, Aurora, found herself impounded and her cargo seized in New Orleans as a consequence of a Congressional action that made sense, but like so much of what Congress did (and does) contained more than it seemed at face value. In short, the Congress passed a law in 1809 that said that Britain and France were violating US neutrality on the open ocean by seizing US vessels and cargos. To that end, the law they passed made it legal for the US to seize and impound British and French cargos and vessels IF – and that is the most important part – the President decided after a certain date that Britain and France had not mended their ways.
A little more than a decade since ratification has passed, and Congress for the first time allowed the Executive to in essence decide the law. As surely as a sunrise, an English ship, the “Aurora,” left England before the date the President had to make the “determination and arrived in New Orleans after the date. The cargo was seized and the owners of the ship’s cargo – Americans – sued claiming that the President did not have the Constitutional authority to in effect, pass a law. Congress had failed to actually pass legislation; therefore it was not lawful to have their cargo seized.
People often ask me when things began to go off the rail of original intent. The fact is that the Framers were clear that all legislative power resided in Congress, not the Executive. They feared and loathed the idea of a strong President and believed firmly that the people, through the House, and the States, through the Senate, should decide what the laws of the land would be. Otherwise, they feared, the President could become a de facto King, perhaps without a crown and within the limits of being elected, but a king nevertheless. The brilliant system of the Electoral College helped to prevent the re-election of any man who saw fit to put himself above the law and the Constitution.
Now the Supreme Court was being asked to decide if the President could in fact make the law. The Court decided that by simply “making a finding” – in this case that England was being aggressive and not observing the US neutrality – that Congress had not in fact, abrogated its legislative authority. The cargo remained seized and the President now knew that he had a permanent loophole. All Congress had to do was include his “finding” as a condition of a law and the Court would allow it to stand.
By 1928 the Court allowed the President to determine tariff rates and, of course, had already abdicated it’s budget process by not only allowing the President to make findings regarding the budget, but punting the whole thing to his Office, meaning that henceforward the President, not the Congress, would actually make spending decisions (and presumably revenue decisions) for the United States. No one would seriously argue that the interpretations of the Constitutions Article 1 Section 1 ever meant that the original intention was to have Congress simply give authority reserved by the Framers to the President.
And yet, nobody is surprised that it happened, either. It was the simply entropy of political systems and particularly republics throughout history.
Each and every time the Congress hands more of its power to the President it is justified as being “more streamlined,” “easier to manage,” “better facilitated,” “sure there is a loss of original intent, but the Framers could not have foreseen this fill-in-the-blank situation.” Freedoms and liberties are made secondary to more and more power concentrated in less and less persons.
