What does President Bush’s decision to use money allocated to stabilize our financial system to bail out the car makers have in common with last year’s decision by California’s Supreme Court to legalize gay marriage? Both show contempt for the democratic process. In the former case, the President is asserting authority in domestic policy immediately after the House and Senate failed to do what he wanted. In the latter case, it is the Judicial branch of a state overturning a law passed overwhelmingly by the people. It is significant that both these examples are in domestic policy. Going back to President Washington, we have recognized that the President’s powers to act in foreign affairs are much greater than his powers to act in domestic policy.
The story of the 20th Century, from the Progressive era, is the story of the creation of an administrative state that takes legislation much less seriously than had been the case. A good case in point is that if President Bush goes ahead and uses the TARP funds for the car makers, he will probably be acting within the law. Why? Congress seldom writes laws these days. Instead it allocates swathes of power to the executive branch and executive agencies. One our legislators ceased to care about writing the laws under which we live, contempt for the democratic process naturally followed in the other branches. In that sense, I suspect, our new lawyer-President will resemble our current MBA President.