Bypassing Congress

Right up front, in Section 1 of Article 1, the Constitution of the United States of America declares: “All legislative powers herein shall be vested in a Congress of the United States . . . .” Congress sets policy. The President executes it.

But this is not good enough for the Reagan Administration. Frustrated in its dealings with Congress, even when Republicans controlled the Senate, the Administration is off on a risky attempt to legislate the discredited and rejected social agenda of the New Right by presidential fiat in the form of executive orders, administrative regulations and court rulings.

Politically, perhaps, anything is fair. Constitutionally, the Administration may be treading on dangerous ground. Morally, the strategy is questionable. Congress and the courts must watch this development with vigilance. The decision to implement policies already rejected by Congress smacks of the domestic equivalent of the Iran- contra affair.

Already President Reagan has announced a new federal regulation that would accomplish what the Administration has failed to achieve on Capitol Hill: to restrict federal financial assistance for family-planning organizations that provide abortion counseling. Among other new orders being considered, domestic adviser Gary Bauer said, is a ban on the sale of allegedly pornographic material in post exchanges on military bases. Bauer acknowledged that this issue raises constitutional questions and added, “We want to make sure whatever we do is legal.” For this Administration, legality often is a matter of hasty and convenient interpretation.

Skirting Congress is nothing new in Washington, but the Administration has raised the practice to something of an art form. This can be done merely by adjusting the vigor with which the laws are enforced and congressional appropriations are spent. In such fashion the Environmental Protection Agency was virtually decimated early in the Administration.

Author Lincoln Caplan has documented in the New Yorker magazine the politicization of the solicitor general’s office in the Justice Department to alter court rulings in its favor. On a broader scale, Caplan wrote that the Administration has failed to enforce and obey laws “in grave, astonishing and recurring actions” and repeatedly has circumvented, misinterpreted and defied the will of Congress.

The Framers of the Constitution would be shocked. So should Americans of 1987.