Will Congress Get Its Groove Back?

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.

Reader Discussion

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on June 27, 2014 at 10:24:28 am

The Executive is failing the public by being too assertive. Congress is failing the public by being too wimpy. Sez who?

Voters select the Executive. Voters select Congressmen. Voters set the standard.

Responding to some scholar who was complaining about gridlock, Barney Frank wheeled around and responded with something like, “Yes, politicians, bureaucrats, lobbyists, the media -- everyone hates Washington. But let me tell you something: the voters are no picnic either.”

Yes, Congress could assert more control over the Executive with a whip and a purse string. And it’s tried to: that’s what the shutdowns were about. And guess what? Voters hated it.

Congressmen are called Representatives – because they’re supposed to represent their constituents. So should Congressmen paternalistically defy their constituents in order to bring the Executive to heel for the good of their constituents?

The weakest link in libertarian theory is the assumptions it makes about how most people actually behave. We have found the enemy -- and they is us.

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on June 27, 2014 at 10:49:20 am

While it may very well be true that "..the enemy - they is us" and that "the voters are no picnic either" it does not necessarily follow that congress would be defying their constituents were they to seek to reassert their constitutional prerogatives nor does it support a claim that the voters hated the "shutdown." In any event, it was the action(s) of the Executive in shutting down parks, monuments, etc that "pissed off" voters. This has little to do with the Congress but does indicate that the Congress should do all it can to reassert itself in the face of a "blustering buffoonish" exposition of Executive / administrative power.

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Image of gabe
on June 27, 2014 at 10:55:23 am

And now for FH Buckley's similar take on this:


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Image of gabe
on June 27, 2014 at 11:16:40 am

Here Professor Wiener brings into better focus : "What Has Become of Legislation?" His choice of "ironic" to describe the recourse to judicial involvement is probably the best we can do, but it is not complete.

Professor Wiener points out that legislation now under litigation has extended *beyond* devolution of legislative authority (and responsibility) to an administrative agency of its own creation to the devolution of that authority to a "private entity."

Of course, there is precedence in the establishment of "Marketing Authorities" which can control the size of apricots permitted for sale; the seizure of raisins; or, the volume of California walnuts to be released by any producer. We are not dealing with a new situation.

Underlying all these issues of devolution, responsibility vacuums, the creation and encroachments of the Federal Administrative State, is the *real* question: "Why? What has caused, and continues to cause, this condition in the role of legislation?"

If we don't try to determine those causes can we expect any reestablishment of constitutionally delineated legislative responsibility? Will motivations for "importance," access to "power and influence" on the part of individuals seeking and occupying legislative positions be sufficient? Will "relative status" in the political arena be sufficient? Have any of those motivations proved sufficient through the developments of the past century?

In response to John Postell's item on Administrative Law, there were the following comments on its transition:

"The efforts, perhaps even the capacities, of the persons comprising the membership of the legislative branches has brought about a **shift in focus to electoral matters rather than on legislative responsibilities.** In part, the effects were mediated by the growth and specialization of legislative staffs. The inclinations of such professional staffs have been to establish frameworks for the activities of other professionals. Much of the legislative processes have become similar to managers setting up systems of managements; essentially the nature of the administrative agencies." [**added]


"However, in that transition of “Administrative Law,” a fundamental change occurred in the “job” of the Administrator. The legislative branch had begun to add to that job ["administering the law"] the tasks of completing legislation and giving it definitive form; particularly legislation that was more descriptive than definitive, and in many cases not definitive. "

Then, as to the "why" of the real question here:

"While legislation may be concerned with the operations of the mechanisms of government, it is also comprised of Rules of Policy, which are attempts to describe, define and delineate a *desired* (conjectural?) social order and the relationships necessary for that desired social order. Constitutions, to the extent they are observed, may limit the legislative delineations of, and impacts upon, individual liberty in the formation and conduct of relationships. But, when the responsibilities for construction of legislation are delegated to professional staffs and responsibilities for completion of legislation are devolved to administrators (those charged with attaining the desired conditions), who then make the legislation definitive, constitutional restraints, and the reasons for them, become loosened or ignored in the popularity (however transient) of the desired ends.

"It is probably the preference for the desirability of particular ends taking priority over consideration of the means of seeking them (let alone their actual attainment) that have led to acceptance of the abandonment and devolution of legislative responsibilities and their transfer to professional staffs and administrative managers."

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R Richard Schweitzer
on June 27, 2014 at 12:34:07 pm

"Of course, there is precedence in the establishment of “Marketing Authorities” which can control the size of apricots permitted for sale; the seizure of raisins; or, the volume of California walnuts to be released by any producer. We are not dealing with a new situation."

We clearly are not! and it continues as evidenced by the destruction of a local home delivery milk producer in my area that was compelled to spend 30% of its operating funds to participate in a Marketing Authority mandate to market milk sales out of state. This was a purely local producer operating in 2 counties!!!
Bad enough that we let admin agencies control markets but to allow competitors to destroy a competing business under the guise of cooperative agreements is going a bit too far!

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Image of gabe
on June 27, 2014 at 22:58:05 pm

Who ever suggested that republican government could survive the universal franchise?

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Image of Glen
on June 30, 2014 at 07:32:01 am

[…] presidency–amounting, as it does, to asking the kid next door to fight the neighborhood bully for […]

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Ambition Made of Sterner Stuff
on July 03, 2014 at 10:13:30 am

[…] miss a few of these critiques of the Boehner lawsuit idea coming from the right (see here and here). The main argument with both columns: the U.S. House has power to fight back if they think their […]

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Independents’ Day? Third-Party Candidates Struggling | Social Dashboard
on August 01, 2014 at 01:27:58 am

This was a thoughtful item, I'm glad I stumbled it and I'll certainly be coming back to see what others have to say regards the issue. Again, thank you, appreciated it.

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Peter Pitcher

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