Jerry Brito is a senior research fellow at the Mercatus Center at George Mason University. He is the co-author of a new book, Regulation: A Primer, with Susan E. Dudley.
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 a series 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.
The second way a president can act unilaterally, however, does create new law, and that is through regulation. Regulating is lawmaking, and regulations are as binding as any law that Congress passes, yet this lawmaking takes place wholly within the executive branch. The president's power to direct the Department of Homeland Security or the Energy Department to issue new cybersecurity rules exists because Congress has delegated—or abdicated—to the executive a massive amount of rule-making power.
Of course, this is not the same as rule by decree. There is a process in place—through the Administrative Procedure Act—to ensure public participation in rule-making and for judicial review of regulations. But the broad mandates given to executive agencies by Congress often results in a very free hand for the president.
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.