Governing by fiat

March 10, 2003

WITH WILDFIRES raging across the West last summer, President Bush tried to get Congress to approve a new policy for thinning timber on federal lands, but lawmakers couldn't agree. No matter. Mr. Bush simply created new logging rules without them.

Similarly, when Congress couldn't come to terms last year on removing barriers that prevented religious organizations from receiving federal grant money, the president eased the restrictions on his own.

And as election-year pressure was building on Capitol Hill to limit patent protections -- and lower prices -- on popular medicines, the president interceded with a modest regulatory curb shortly before voters went to the polls last fall. He thus got to claim he was a champion of generic drugs at the same time he was taking steam out of a congressional drive that would have made them available much faster.

George W. Bush is certainly not the first president to make adept and liberal use of executive authority. But Congress is also handing power over to him by the fistful. The system of checks and balances is tilting alarmingly out of whack.

Much of the problem stems from the sharp partisan divisions that increasingly undermine legislative efforts to compromise. Congress' failure to act on many issues leaves a vacuum Mr. Bush eagerly fills.

Further, the shift of majority power to Republicans in the mid-1990s spelled the demise of the "old bull" Democratic committee chairmen, who used to rule for decades at a time. They often had more clout with executive agencies than presidents.

GOP committee chairmen in the House are term-limited, and thus less feared. Some Senate Republican chairmen are senior enough to go toe-to-toe with the president -- just watch John McCain at Commerce -- but most probably won't want to.

Thanks to the filibuster, Senate Democrats can block Mr. Bush when he must have congressional approval, as they are now doing on judicial nominations. A minority can also prevent him from taking steps specifically prohibited by law, such as oil drilling in Alaska's wildlife preserve.

But when Mr. Bush uses his executive authority to make policy changes in the way laws are enforced -- as he has done most notably on environmental issues -- the only sure way Congress can stop him is by enacting new legislation with enough backing to override a veto. That's very difficult.

Democrats talked for months, for example, about blocking Bush rules allowing power plants to expand without updating expensive air pollution controls, but could never muster enough votes.

In many cases, Bush actions can be challenged in court, and reversed where they are deemed to exceed his authority. He and his allies are moving to minimize such opportunities, however. They succeeded recently in prohibiting appeals of a plan to allow logging in roadless areas of Alaska's Tongass National Forest through a provision quietly added to the 2003 spending bill.

Bush partisans may celebrate this trend to greater executive power. But they should be warned: Sooner or later their party's turn in the White House will end. If they have to face a Democratic president whose authority is virtually unchecked, they'll likely regret Congress unilaterally disarmed.

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