by Joseph Jerome
Recently in The New York Times, Adam Liptak cautioned that the legislative paralysis brought on by congressional polarization has made the Supreme Court increasingly more powerful, but a dysfunctional legislature can also increase the power of the presidency. Issue after issue, important separation of powers principles are being distorted as the other branches assert their power. In the courts, this produces policy without accountability. When the president acts without Congress, it creates a democracy governed by executive decree.
In our system of checks and balances, power grabs, particularly by the executive, are not surprising. “[A]ll the time, presidents are pushing out on the boundaries of their power and claiming new authority,” Professor William Howell explains, but the president’s ability to secure that authority is dependent upon how the other branches respond. If Congress’ failure to address calls for cybersecurity legislation is any indication, Congress’ response these days is simply to pass the buck over and over again.
Before leaving for its recent recess, congressional dysfunction was on a full display when the Senate failed to overcome a filibuster of the Cybersecurity Act of 2012. The Senate’s treatment of the issue devolved into a circus, with longtime allies Sens. Joe Lieberman (I-Conn.) and John McCain (R-Ariz.) arguing over each other’s national security bona fides. The legislative breakdown followed a familiar pattern: after Senate Majority Leader Harry Reid refused to permit additional amendments to the bill, the threat of a Republican filibuster ended any further discussion, and the Senate closed for business.
Sen. Mitch McConnell (R-Ky.) insisted that Republicans did not really wish to filibuster the bill, arguing instead that Republicans only sought to improve the proposed law through their set of amendments. Yet he failed to mention that one of his own suggestions to “improve” cybersecurity legislation was to completely repeal the Affordable Care Act, leaving Reid to wonder what gutting health care reform had to do with cybersecurity.