On Sept. 17, we commemorate Constitution Day, 232 years since the signing of our founding document — a piece of parchment, housed under armed guard in the National Archives, which guarantees our individual freedoms. How? By dividing and separating the governing power of the people, with checks and balances in each governing body, to prevent the accumulation, usurpation or abuse of power by those entrusted to exercise it.
The states created the federal government to perform limited, listed national functions, while all other powers were reserved to the states and the people. How are we doing in our annual checkup?
The conflict over funding a border wall illustrates the disarray of the federal government. Congress refuses to address our broken immigration system, so the president invoked the National Emergencies Act to fund the wall out of the defense budget. Congress complains to the federal courts but has only itself to blame for ceding too much power to the president. Congress threatens to revoke the power, but that would require passing a law, which Congress has difficulty doing. And even if passed, the president would likely veto it. Power, once lost through delegation or usurpation, is difficult to regain.
This conflict highlights an all-too-familiar pattern: Congress delegates power to the executive branch, and the president makes law and policy through executive orders and administrative rules, whether on foreign policy, immigration, international trade, public lands, environmental protection or any other issue. Congress complains of executive action, but takes no meaningful action to control it, with the same effect as barking dogs chasing a speeding executive limousine. The reality is that Congress has lost control of the executive branch. Meanwhile, Congress continues uncontrolled spending on programs to ensure reelection — mounting a national debt that will crash our economy.
A country governed by unelected bureaucrats and judges is not what our founders intended in crafting our Constitution. Our founders envisioned a limited federal government, with Congress making law, the president executing the law and the judiciary interpreting the law — leaving the vast exercise of government power to the states, including matters of health, education, morals, public safety, marriage, family, life and death. The federal government, with a budget four times the size of all state budgets combined, has grown too big, too powerful, too expensive and too inefficient. Over the past several decades, government power has shifted from the states to the national government, and from Congress to the president and the courts. This accumulation of power “in the same hands” is “the very definition of tyranny” (Madison, Federalist 47). Both political parties are at fault, and all of us should be concerned.
Some may say, “So what?” But the clear result is loss of individual liberties that limited government is intended to preserve. When we face restrictions on our freedoms to speak and associate on college campuses, or freedom to worship, or freedom to provide or obtain education and health care, or to use our land or sell our goods and services or freedom to establish public policy as states, we realize the federal government has amassed too much power. While some in Congress, like Sen. Mike Lee, are trying to address the problem, most ignore it. As candidates line up to replace Congressman Rob Bishop, who is also a champion of federalism, I hear little discussion of federal overreach. We’ve grown numb to our condition.
Recently, I attended a national conference of state legislators where we discussed the loss of federalism — the constitutional balance of federal and state government power. I noted that one remedy is found in Article V of the Constitution, which authorizes the states, rather than Congress, to propose amendments to the Constitution to limit federal power and spending, such as granting states a collective check on federal law. Another legislator responded that “the Constitution is not broken and doesn’t need to be fixed.” That is true, my friend, but the federal government is broken, and we must use the Constitution to fix it. Power must be checked by a “rival power” (Hamilton, Federalist 28).
Our role, as a people and as state legislators, is to “erect barriers,” in the form of constitutional amendments, to check federal power and restore state sovereignty (Hamilton, Federalist 85). This obligation requires our united best efforts and reliance on all available lawful remedies. We owe that to our founders, to future generations, and to the God who made us free.
Rep. Merrill F. Nelson represents House District 68 in the Utah House of Representatives.