Originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition.
This week witnessed discordant events that may signal a renewal of congressional government while illustrating the peril of relying on another branch of government—the judiciary—to revive it.
In the first, the Supreme Court on Monday granted certiorari in a case, U.S. Department of Transportation v. Association of American Railroads, that could mark the first time since pre-New Deal jurisprudence that it invalidates a law on grounds of nondelegation, the principle that Congress cannot transfer its legislative authority to another branch of government. Then, on Wednesday, Speaker John Boehner announced plans for the House to sue President Obama over non-enforcement of laws.
Both situations, in different ways, deal with the constitutional primacy of Congress. The discordance is this: One results from Congress surrendering its authority; the other from Congress—comprised of many of the same members—asking the Court to reclaim it for them. Congress passed—by a widely bipartisan margin of 377-38—the 2008 law ceding its authority that is now being challenged in the railroad case (Mr. Boehner of Ohio: aye). It now turns to the same courts to reclaim its authority in other circumstances. The situations, of course, are unrelated, but the irony of their juxtaposition is unmistakable.
There is something pathetic here: the legislature, Madison’s impetuous vortex and devouring monster, going hat in hand to Hamilton’s least dangerous branch for relief from a situation into which it put itself and out of which it shows few indications of being willing to get itself. The real solution is legislative elbow-throwing: Stop ceding authority on the one hand and standing for its seizure on the other. A single house of Congress is capable of each. The radical step of impeachment, for which legislators are quick to whine they cannot muster the votes, is a red herring. Both houses of Congress are necessary to fund the executive branch and to pass laws giving it new powers. Decline to do either, and the separation of powers lives.
Barring that, which seems unlikely, the steps taken this week may empower the courts to do what Congress is unwilling to do. Bringing the suit for enforcement of laws in the name of a house of Congress alters the calculus of standing that otherwise inhibits suits by individual members. The precise contours of Boehner’s case remain unclear, but one can imagine circumstances in which it would empower the judiciary to restore some faithful execution of the laws and, with it, Congressional authority.
Similarly, even those who believe in judicial restraint might have reason to cheer a revival of nondelegation jurisprudence, which last saw serious constitutional combat in 1935’s Schechter Poultry Corporation v. U.S., when a unanimous Court struck down the transfer without accompanying standards of regulatory authority over wages, employment hours and other industrial conditions from Congress to the President. The railroad case presents an especially egregious situation—the delegation to Amtrak, a quasi-private company, of shared regulatory authority over other companies—but might occasion a revival of the nondelegation doctrine nonetheless.
The justification for judicial intervention in this case is that it is intended to restore rather than inhibit what Madison called “the vital principle of our free Constitution”: deliberate majority rule. Executive government is far likelier to be impulsive rather than measured. The administrative state is, moreover, fraught with the arbitrariness whose correction—as opposed to situations of majority-minority abuse—Madison assigned to the judiciary.
Even to the extent the courts must be invited to police the separation of powers for the simple reason that Congress declines to do so for itself—and the people decline to make constitutionalism a voting priority—this can be understood as an adaptation to the realities of the regime in much the same way Jack Rakove argues that Madison came to accept that the boundaries of federalism would have to be judicially rather than politically maintained. The political solution, after all, was based on institutional assertion of a kind Congress has abandoned, so it is difficult to see how the separation of powers—a core constitutional value—can be maintained without some other solution.
Yet there are reasons for Madison’s hesitation. Judicial power is not a surgical instrument: It sets standards; prudence, by contrast—which the political branches can exercise in deciding whether, for example, a given situation warrants an escalation of political battle such as cutting off funding—makes distinctions. A judicial standard that all presidents must enforce all laws at all times would be immensely problematic, and for constitutional reasons: It would deprive executives of one of their primary modes of involvement in constitutional disputation, which is declining to enforce unconstitutional laws. Involving the courts in dissecting a president’s particular motive for declining to enforce a law—clearly the deferral of the employer mandate, for example, was a matter of policy, not constitutional principle—would upset the balance of powers too. And it is unclear what form, precisely, the remedy might take and how it would implicate other constitutional variables: Would the Court, for example, order the President to deport certain people?
Moreover, depending on the courts to maintain Congressional power leaves the legislature at the caprice of the judiciary. The latter branch may be in capable hands just now but has not always been, nor will always be. Structural precedents in a regime are for the long haul, not for episodes.
Most troublingly, though, the resort to the judiciary threatens further to weaken Congressional muscle that has already been in self-imposed atrophy—feet propped on a couch, gym membership lapsed—for the better part of the last half-century. It deepens the patently false impression that Congress, once the undisputed bully on the block, is incapable of self-defense against its big brother without an assist from its weaker sibling. The solution may be simpler. If Congress wants to keep its authority, maybe it ought to stop giving it up and start taking it back.