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Restoring Legislative Power to the Legislature

Jeffrey H. Anderson

In Federalist 48, James Madison writes that, far from having three “coequal” branches of government—an erroneous claim that’s commonly asserted today—the “legislative department derives a superiority in our governments” from having “more extensive” constitutional powers that are “less susceptible of precise limits.” In comparison, “the executive power” is “restrained within a narrower compass” and is “more simple in its nature.” In Federalist 51, Madison adds that, “In republican government, the legislative authority necessarily predominates.”

Madison, therefore, would surely be shocked to read this line in Wednesday’s Wall Street Journal: “The president has authority to unilaterally determine how many refugees the U.S. will accept.”

This is plainly power that is legislative in nature, yet the Journal‘s claim appears to be true. Title 8, Section 1157 of the U.S. Code says that “the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines…is justified by humanitarian concerns or is otherwise in the national interest.” In other words, Congress seems to have delegated this legislative power to the executive. Congress should now pass legislation to reclaim it.

President Trump is reportedly poised to overrule President Obama’s plan to accept 110,000 refuges in 2017, with tens of thousands of those being from Syria. If Trump does so, we’ll essentially be back to where we were before Obama issued his decision. But the long-term concern is that, in a representative republic, Obama was allowed to determine policy on this matter for a nation of more than 300 million people all by himself.

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