Why Congress Cedes Power to the Administrative State

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.

Reader Discussion

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on January 08, 2018 at 06:31:36 am

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Why Congress Cedes Power to the Administrative State | Top 100 Blog Review
on January 08, 2018 at 14:20:28 pm

The essay slips away from the question raised by the heading and ends with the issue of legislative power and its "dominant" position in a Constitutional format.

So, let's try to tie those points together for some understanding of how we have arrived at this juncture might help us if there is a sufficient electoral desire to alter the impact of the Federal Administrative State on individual liberty.

We began with "All legislative Powers herein granted shall be vested in a Congress of the United States . . . " What are the **functions** of those "legislative Powers?"

They are to provide rules for the organization and operation of the functions of the government established by the Constitution.

But, the functions of legislators has also been determined to include **representation** of the interests of the electorate.

It has developed that the interests of the legislators, individually and collectively, have been enhanced by concentration on concerns for the representation of particular interests of segments of the electorate to the point such representations have become a predominant function.

In the exercise of the latter functions, legislators have arrogated to legislatures powers to expand the functions of the Federal government. Those actions have increased the political, economic and social functions of the legislature; and thus, the same for its members, who have become a "fixed" political class (not all of whom are elected) with entitlements and immunities.

Legislation increasing the functions of the Federal government have required provisions for organization and administration of those functions. But, the Constitution requires that the **management** of functions shall rest with the Executive Office, who has become a manager of managers within an Administrative State created by legislation, responsive to, or seductive of sufficient segments of the electorate for the motivations of legislators.

Perhaps we might look at how to correct the **perversions** of powers (and the causes for those perversions) rather than hammering away at their *separation*.

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R Richard Schweitzer
on January 08, 2018 at 19:01:01 pm

"Perhaps we might look at how to correct the **perversions** of powers (and the causes for those perversions) rather than hammering away at their *separation*."

In short, you get what you ask for; if the people be perverse, so too will be their government!

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on April 19, 2018 at 03:42:07 am

The perversions come in large part from the education system. If people are not taught, or wrongly taught what government is and is allowed to do, of course they will be perverse. and I yes understand the moral aspect to this. Generally, people today believe we are a democracy where mob rule gets to take what they want. They are not taught that the unalienable rights of others are the limits on majority rule. Nor are they taught the duties involved.

Because of voter's lack of understanding and apathy, the government has populated with corruption. The corruption has become a cabal between the three branches of government. We hear congressmen say they don't care if a bill is constitutional, they leave that to the court. The court rewrites the Constitution. And the Executive does what it wants understanding the system is so slow, they can't be stopped while they are in office. The People could stop this.

"I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power." Thoma Jefferson.

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on January 03, 2019 at 11:51:45 am

[…] time, the line between the executive and legislative branches has blurred, as Congress has ceded power to the executive administrative state by writing statutes that are increasingly vague, leaving the bureaucracy to […]

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Auer Time Has Come? | US Daily Review

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