Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
In Federalist 51 James Madison famously develops a political invisible hand argument for separation-of-power systems. As with markets, in which competition can harness profit-maximizing incentives to serve the broader public’s welfare, separation-of-power political systems, according to Madison, can remedy the “defect of better motives” by arranging institutional interaction so that “the private interest of every individual may be a sentinel over the public rights.”
Madison, as well as other constitutional framers, worried of the ability of legislatures to usurp the power of the other branches. He cites this concern when justifying congressional bicameralism, and the distinct terms and modes of election for each of the chambers.
Madison cannot be faulted for failing to anticipate the evolution of the U.S. national separation-of-power system a century or more in the future. Yet we can ask how well Madison’s theory has held up for the modern U.S. national government. This seems especially important in light of concerns about the growth of the administrative state, with presidential power, and with judicial usurpation of legislative power. We can press Madison’s argument in The Federalist both as to whether legislative interests are sufficiently “opposite and rival” to those of the other branches to fight against power encroachments, and also wonder about the consequences of congressional organization for its ability to defend its prerogatives.
Today, legislative delegation to executive administrative agencies receives a lot of attention. Understandably. Congressional delegation to the judiciary, however, developed alongside this phenomenon, and perhaps initially suggested a model of legislative deferral. Political scientist George Lovell argues in his book, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy, that Congress intentionally deferred critical legislative decisions for judicial determination in federal labor statutes enacted in the late 19th and early 20th centuries. According to Lovell, for their own reasons (avoiding accountability and reducing decisions costs among them), legislators did not want to make the necessary policy decisions, and so handed them over to judges who were willing to make them. In essence, legislators were not jealous enough of their own power; they perceived their interests not to be entirely opposite and rival to those of the judges they empowered to make important policy decisions.
The story is better known with delegation to executive administrative agencies. Whether lack of expertise or electoral incentives (moving decisions from electorally salient legislators to bureaucrats more buffered from electoral accountability) or other causes, again, legislative incentives do not seem sufficiently opposite and rival those of the executive branch to deter Congress from deferring legislative power to executive agencies. Electoral accountability was doubly sundered by the merit system, protecting most executive branch employees from direct presidential control. This isn’t to say there aren’t significant advantages to the merit system. But it does move the bureaucracy one more step away from accountability to an elected officer.
Beyond cases in which Congress may actually desire to hand over some of its power to the judicial or executive branches, there is also the issue of organizational handicaps Congress labors under, particularly relative to the President.
Congressional prestige and prerogative is a public good among the legislators. Each legislator can very well prefer more prestige for the institution relative to less. But in a plural legislature, each can also prefer that the other legislators exert the time and effort to maintain institutional prerogatives relative to the other branches. As a public good, Congress as a collective institution would be expected to underinvest in activities that would maintain its institutional prerogatives relative to a presidential office held by a single individual. This tendency would aggregate over time, resulting in more and more power being exercised by the President relative to the Congress.
The fact Congress faces a similar incentive structure when interacting with the bureaucracy leads to a predictable situation: an underprovision of congressional oversight of administrative agencies relative to the optimum for the legislators. Beyond issues raised by a plural legislature facing a unitary executive, Congress faces added problems of coordinating across two chambers that must act in concert to effectuate their will against a president, agency, or court.
Madison wrote that “In republican government, the legislative power necessarily predominates.” But accountability problems can arise when the members who compose that predominate power determine that their individual interests are best served by handing their decisions to other branches. And long-term problems can arise when the “opposite and rival” interests of the legislature turn out to be too diffuse to entice a sufficient level of institutional jealousy when challenged. The question today would seem to be how to return some of that domination to Congress and, once returned, to entice legislators to take responsibility for its use.