The ‘Living’ Law

Congress is handing its indispensable constitutional role to the executive branch.

In his dazzling revolutionary polemic, Common Sense, Thomas Paine explained in no uncertain terms that in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.

John Adams put this a little more pithily a few years later, distilling into the new constitution of Massachusetts an ancient English value: This state, Adams wrote, would be “a government of laws and not of men.”

Adams’s axiom has become American scripture; an impulsively recalled maxim of liberty to which all men who feel threatened by government power return at will. Yet recent trends call into question whether the two things remain mutually exclusive. In Common Sense, Paine sets the king and the law as being diametrically opposed. But what if, instead of holding him back, the law is happy to give the king carte blanche? And what if a Congress that we instinctively believe to be jealous of its territory is in fact content to cede it to the executive branch, thereby producing not traditional laws but enabling acts?

It is a small jump from regarding the Constitution as “living” — as swathes of the will-to-power Left unashamedly do — to regarding legislation as “living,” too. This is a jump that many appear to have made. One of the more insidious developments of this presidential era has been the replacement of prescriptive, detailed, and fixed domestic law with bloated and open-ended legislation that is punctuated ad nauseam with instances of “the secretary shall.” As my colleague Andrew Stiles has noticed, the Senate’s desired immigration bill fits this new model of “living law” perfectly. He writes:
The 844-page bill contains 129 instances of what the DHS secretary “shall” do to implement its myriad provisions, 102 mentions of what she “may” do, and 35 cases in which implementation will be based on what the secretary “determines.” On five occasions, the bill affirms the DHS secretary’s “unreviewable discretion” to waive or alter certain provisions as she sees fit.

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