Congress and the Collapse of Constitutional Republicanism in America

There’s nothing Congress likes better than not legislating. The legislative process in theory still takes place in Congress, but the results, which have the name and form of law, are in reality not law, properly understood. Legislative policy is still made in America, but it overwhelmingly takes forms other than laws enacted by Congress according to the process set forth in Article I of the Constitution. By conferring legislative power on others and leaving vital public issues unaddressed through congressional action, members of the legislature are effectively failing to carry out their constitutionally designated duties.

The importance of this change in the American political system cannot be overstated. Delegation—Congress’s abdication of its core legislative function—is key to understanding both the modern Congress and the crisis of constitutional government in America. Congress’s regular use of delegation has led to two seismic consequences: institutional failure on a massive scale and, more fundamentally, a transformation in the very character of the American regime.

Congress and the Legislative Power

The Constitution’s first substantive provision in Article I states that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The Legislative Vesting Clause reflects the belief that the legislative power is distinct from other powers. A specific institution, Congress, is entrusted with a specific power: the legislative power, or the power to make laws.

So what is a law? In Federalist 62, James Madison defines it as “a rule of action,” while Alexander Hamilton similarly holds in Federalist 75 that laws are prescribed “rules for the regulation of society.” A law, properly understood, authoritatively communicates to its subject what he must do and must not do. By implication, law also communicates to its subject what he may do, but is not required to do.

As the powers of government are fundamentally distinct by nature, each power under the Constitution has a discrete characteristic. In the case of the legislative power, that characteristic is deliberation. In the Nicomachean Ethics, Aristotle asserts that deliberation is a particular kind of thought; “We deliberate,” he writes, “about things that are up to us and are matters of action.”

Ultimately, deliberation is the active form of prudence, or practical judgment. The deliberator must prioritize competing, or mutually exclusive, goals and determine which takes priority. The choice will favor one course of action over another or seek to balance or compromise between multiple courses of action. The deliberator’s choice reflects the regime’s priorities and how best to achieve them in a given situation.

Progressivism, Delegation, and the Administrative State

Congressional delegation of legislative power began almost by accident, in response to a concrete problem, and with little theoretical reasoning surrounding it. Near the end of the 19th century, widespread concern about the corruption of railroads, especially regarding rates, led to calls for federal intervention. The Interstate Commerce Act of 1887 created the Interstate Commerce Commission and charged it to set “reasonable and just” rates, while prohibiting what the act called “personal discrimination”: granting special rates, or free transportation, to favored individuals.

The growing Progressive movement latched on to delegation and gave it a principled argument. The people and their elected representatives, the Progressives maintained, are handicapped in the legislative policymaking process in two main ways. First, policymaking in modern, industrial nations is more complex and requires more technical knowledge than ever before—which is precisely what the people and their representatives lack. In “The Study of Administration,” Woodrow Wilson argues that “Directly exercised, in the oversight of the daily details and in the choice of the daily means of government, public criticism is a clumsy nuisance, a rustic handling delicate machinery.”

The second problem with allowing the people and their representatives to legislate directly on complex, technical subjects is that it is hard to keep the overarching goal in view. Everyone wants clean air, but as David Schoenbrod notes in Power Without Responsibility, crucial questions must be answered such as “How clean?” and “At what cost?” For example, to achieve a certain level of clean air, are we willing to tolerate massive increases in energy costs? How about rolling blackouts? What are the national security implications of our policies? Are we willing to allow our nation to become dependent on foreign energy sources?

In a sophisticated, modern society, then, another model of legislative policymaking is needed. This involves partitioning legislative power into two separate activities. Wilson explains that “The distinction is between general plans and special means.” The task of the people and their representatives is to declare the purposes they want the state to accomplish in a particular policy area. Devising and implementing the means to achieve these ends is to be left to a commission of experts, who can apply their expertise to a given policy area.

Over time, the federal courts ratified congressional delegation and integrated it into the constitutional order. In 1928, the Supreme Court asserted that so long as “Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.” The “intelligible principle” test effectively means that, so long as a reviewing judge can reasonably discern what Congress wanted the administrative entity to do, the delegation is legitimate. It remains the standard to this day.

Institutional Failure

Delegation has allowed members of Congress to satisfy their ambitions, upon which the constitutional system of separation of powers depends, by means the Constitution has largely precluded.

Serving multiple terms as an elected representative can be a significant challenge. The member will have cast numerous votes and taken many public positions over the course of his career, some of which are bound to be controversial. These votes and positions therefore provide plenty of fodder for potential challengers, who can offer voters a real alternative to the incumbent.

Delegation offers legislators a way out. As Morris P. Fiorina has described, delegation allows a member to take positions on broad issues that are popular with voters. He then votes for legislation, which instructs the bureaucracy to devise and implement rules to achieve a popular goal. Congress transfers to the bureaucracy the odium incurred by whoever makes the difficult choices that impose costs and burdens on others. Members get credit for achieving a noble, crowd-pleasing goal, while the bureaucracy absorbs the blame for creating the burdensome rules and regulations necessary to achieve it.

Delegation has altered the distribution of incentives for members of Congress in a second way. As Fiorina notes, the growth of the administrative state creates ever-increasing opportunities for individuals to get caught in the web of bureaucracy. When they do, the individual needs someone on the inside to help him, and his congressman is perfectly positioned to provide that service. By helping his constituents, a congressman builds goodwill, which translates into votes. This is why individual members allocate a significant portion of their staffing resources to constituent services.

As the nation has become increasingly polarized ideologically and as Congress has effectively abandoned control of the federal budget, which gives the individual member influence with the bureaucracy, members have increasingly engaged in catering to the ideological predilections of their districts. In response to constituent pressure, they take strident public positions on major issues, and thus build support within them.

Regime Change

In any political system, knowing where the legislative power is located and how it is exercised is critical for understanding the nature of that regime. The American Founders created a republic rather than a pure democracy, and thus legislative power is exercised by the people’s elected representatives. Congress, like all the other institutions of our government, is a creature of the Constitution. The American Congress can legislate only on subjects, and in ways, specified in the Constitution. The Constitution therefore does not simply create a republic; it creates a constitutional republic.

The Progressives despised the founders’ constitutionalism. They saw it as unable to cope with modern policy issues and as an inaccurate description of how political systems actually operate. As an operating principle, they substituted for the separation of powers a system that Frank J. Goodnow called “politics and administration.” Politics, including all political institutions, were to be brought into ever-closer contact with the will of the people. The president would represent the whole country, while Congress would be an assembly of the various local interests within the community.

Simultaneously, real power would be put in the hands of administrators. Legislative power—the power to make rules for the regulation of society—would be transferred from the people’s representatives and given to experts who were to be substantially insulated from the electoral process. Additionally, Goodnow explains that these experts would also exercise the traditional executive and judicial powers, and what he ambiguously terms “administrative” powers.

While the Progressive system may appear to be more democratic, the reality is anything but. Powers vested in the officers of the separate branches would be delegated to a new elite class, specially qualified to rule and largely placed beyond electoral control.

The regime the Progressives sought to create, whatever their protestations to the contrary, is an aristocracy. It is not a traditional aristocracy of land, birth, and titles, but an aristocracy of the credentialed, those who attended elite universities have the training and experience to deal with the complexities of modern government and modern social problems.

Our present political reality is far from the Progressive model. Instead of being a technical and scientific elite, a self-selecting aristocracy of the competent, our ruling class has hardened into exactly that: a class. This class is defined by three salient characteristics: first, our elites have contempt for those whom they govern. Second, our elites are not very good at ruling. Finally, our elites rule in their own interest, rather than that of the country as a whole. The aristocracy has collapsed into an oligarchy.

If Congress is to be compelled to return to legislating, the motive force must come from outside. The electorate will not do it; the issue is far too obscure and procedural to resonate with most voters. Perhaps the president could do it, but only if Congress becomes so unhappy with presidential action that it decides to legislate for itself. Nevertheless, the advantages of delegation for congressmen are still too great. That leaves the federal courts, which could force members of Congress to legislate by ending their toleration of delegation. Justice Samuel Alito’s concurrence in Gundy v. U.S. suggests the possibility that the Court might be ready to resurrect the non-delegation doctrine.

The future of constitutional republicanism in America—and therefore of American liberty—depends upon restoring Congress, as the people’s elected representatives, to its constitutional legislative function.