Reviving Congress Would Revive Democracy (2023)
Reviving Congress Would Revive Democracy
The Wall Street Journal, June 10, 2023
This is a shorter, journalistic version of “Representation and the Common Good,” posted immediately above.
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Representation and the Common Good (2023)
Representation and the Common Good
United Kingdom National Conservatism Conference, London, UK, May 17, 2023
The representative legislature is a British-American innovation from the 17th and 18th centuries that proved a mighty engine of nationhood in our lands and beyond. It has become so thoroughly associated with legitimate government that even dictatorships such as China and Russia operate faux legislatures.
But modern times have been unkind to this great inheritance. Legislatures are being undermined by instant communications, missionary bureaucracies, politicized courts, the ideology of expertise, and the progressivist quest for a democracy of personal rights and group identities.
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The Difference Congress Makes (2018)
The Difference Congress Makes
Claremont Review of Books, Summer 2018
Review of David R. Mayhew, The Imprint of Congress (2017).
The Administrative State—Congress as Coconspirator (2018)
The Administrative State—Congress as Coconspirator
2018 Bradley Symposium, The State of the Constitution, May 15, 2018
Our topic this morning is the administrative state. That does not mean we will be discussing the current state of administrative methods or the problems of administering state agencies. “Administrative state” is a constitutional pejorative. We use it to describe something we do not like: the migration of lawmaking from the Congress to the executive branch and of adjudication from the judiciary to the executive.
The President is charged by the Constitution with faithfully executing the law. But today the President and his subordinates—now including innumerable regulatory and administrative agencies and multiple staffs in the Executive Office of the President—not only execute our laws, but also write laws in the form of rules and adjudicate disputes that arise under their rules. This consolidation is an affront to the separation-of-powers scheme the Framers established. It has led to many proposals for constitutional restoration.
My argument is that the administrative state is primarily the creation of Congress. It has come into being not through executive seizures of power but rather through congressional grants of power, a procedure lawyers call “delegation.”
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The Decline and Fall of Congress (2015)
The Decline and Fall of Congress
The Wall Street Journal; October, 18 2015
The Republican contest to avoid being House speaker, one of the most storied and powerful positions in American governance, should tell us that something in our politics has changed profoundly. Kevin McCarthy, Paul Ryan, and Trey Gowdy are ambitious men of exceptional talents and highly developed conservative convictions. They have already sacrificed a lot of family time to get where they are. Individual circumstances cannot explain why they all wish to stay off center stage.
The disarray within Republican ranks isn’t an adequate explanation. Party fractiousness is nothing new. It didn’t dissuade Henry Clay, Thomas Reed, Joe Cannon, or Sam Rayburn. The 40-odd Freedom Caucus Republicans are radicals, but on the surface their radicalism is tactical. They are not more strongly opposed than the Republican leaders to deficit spending, ObamaCare, Internet regulation, and executive imperiousness. They may be more impatient, and more enraged over the manifold corruptions of Washington politics. But the exigent questions are the tactics of opposition. Hard tactical choice is what leadership is for, in the legislature as on the battlefield.
The answer lies elsewhere, in deep changes in the incentive structure of American politics. These changes, at once cultural and economic, have transformed everything from the parties to the presidency to the Congress in recent decades. The circumstance of conservative congressional majorities facing a determined leftist president has brought them to the surface in a vivid new form.
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Reviving a Constitutional Congress (2015)
Reviving a Constitutional Congress
Lecture, Hillsdale College Constitution Day Celebration, Washington, D.C., September 15, 2015
Our Constitution is often treated as a reliquary, worthy of reverence but no longer of much practical use. Yet the Constitution reflects, in many deep and subtle ways, the character of the people who established it and have lived and prospered under it for centuries. This is particularly true of its structural features of federalism and separated powers, which vindicate Americans’ democratic nature, our distrust of power, and our taste for open competition.
The struggle for power and advantage is a constant of human society. In democracies, that struggle is organized and advertised through political campaigns and elections. It is equally present within government, but there it is not always observable. In the parliamentary systems of Europe, open competition ends with the election returns and formation of a government. At this point legislative and executive powers are fused. Struggles over policy and personal advantage continue, but work themselves out in private within the ministry offices and leadership councils. A well-led government can present, at least for a time, a unified, dignified, self-confident public face.
That is seldom possible in the American system. Here, competition in government is exposed for all to see. The two political branches possess separate electoral bases and are assigned powers that are partly shared and partly independent. They are co-dependent and must work out their differences in public. Presidents, executive officials, and members of Congress may bring astute tactics and compelling rhetoric to the task, but in the heat of public contention they are also prone to diatribes, bluffs, missteps, backtracking, and humiliations. Dignified the process is not.
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Congress Incongruous (2015)
Congress Incongruous
Liberty Law Forum; August 2015
The representative legislature is the product of social thought and political contention going back to the ancient Greeks and Romans, running through the Magna Carta of 1215, and culminating in the seventeenth and eighteenth centuries in the works of, most prominently, Locke, Montesquieu, and the American founders. It became the institutional vehicle of republican aspirations against the prerogatives of kings and despots.
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The contemporary era has not been kind to this great inheritance. The idea that we should be governed by elected representatives of diverse local districts, who gather to make law by hammering out compromises and counting noses, was conceived and developed when government was naturally constrained by what economists call high transactions costs. When travel and communications were slow and costly, legislative gatherings were crucial occasions for representatives to learn of developments in other regions, to take the measure of far-flung political leaders friend and foe, and to forge alliances and make compromises (whether as “agents” or “trustees”) far from the gaze of hometown electorates. When political organizing was costly, interest groups were few and broad-based, and established civic and political elites, including legislative elites, held sway. When surveillance, law enforcement, and program administration were costly, the executive could perforce do only a few things.
Modern affluence and high technology have disrupted all of those functions.
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The representative legislature has also been a victim of modern habits of mind, which tend to value identity over locality, rationalism over representation, and decision over deliberation. Each of the three branches of American government (which correspond to a division of functions found in all modern governments) has its own distinctive principles of operation and legitimacy. The judiciary’s principles are reason and resolution—courts determine the facts of a dispute, resolve the dispute by deduction and inference from texts and precedents, and explain their reasoning publically. The executive’s are (since the Age of Jackson) personality and action—presidents incarnate important features of national character and aspiration, dominate political attention and debate, and take personal actions that settle some matters in a stroke and redefine others by changing the “facts on the ground.”
The legislature’s principles, representation and compromise, are relatively unimpressive. Representing geographic localities is not what it used to be, because of the globalization of commerce and culture and increased personal mobility; locality is not without political importance, but many people today care much more about representation of their personal values, group identities, and vocational and avocational interests. Individual legislators have little capacity for decisive personal action: on their own they can campaign, give speeches and interviews, write letters, question hearing witnesses, and cast votes, none of which hardly ever resolves anything. Their primary assignment is to negotiate and horse-trade with other representatives of similar, differing, and conflicting interests and values, leading to collective decisions that no one is entirely happy with or, quite frequently, to no decision at all.
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The Republicans’ Congress Problem (2015)
The Republicans’ Congress Problem
National Review Online, January 13, 2015
The Republicans’ victories in the November congressional elections have gotten them into a serious fix. For they have acquired leadership of a branch of government that is strong in theory and in public reputation but has grown weak in practice as a result of decades of delegation and disuse of its constitutional powers. And the Republican 114th Congress will be facing an executive branch that has accumulated tremendous powers to make policy on its own and is now under the management of a leftist president who will continue to exercise those powers aggressively.
The Republicans may nonetheless win some significant policy victories. On two of their top priorities, Obamacare and the EPA’s efforts to regulate greenhouse gases and carbon-based energy, the action has shifted to the courts and the states, whose constitutional powers remain relatively robust. Several legal challenges to the administration’s far-fetched applications of the Affordable Care Act and Clean Air Act will be decided in 2015. And both programs depend on the cooperation of at least a substantial number of states, which have become increasingly Republican and leery of federal regimentation. Reversals could oblige President Obama to seek Congress’s help in rescuing two of his most cherished legacies, opening the door to conservative reforms.
Yet the Congress problem is serious, both for the Republicans’ immediate political ambitions and for the good health of our constitutional order. Shortly before the elections I wrote an essay, published by The Weekly Standard, addressed to the looming political problem but inspired by earlier writings on the constitutional problem (here and here). I had documented Congress’s wholesale delegation of taxing, spending, borrowing, and lawmaking powers to the executive branch, and viewed with alarm the growing concentration of power in a single branch and a single person. It occurred to me that a period of fully divided government, with one party controlling Congress and the other the White House, might provide an opening for institutional revival. To paraphrase James Madison in Federalist 51, the partisan interests of the congressional majority might be connected to the constitutional rights of the place. When the prospect of partisan division appeared on the horizon, I proposed a series of steps to make such a connection during a Republican-led 114th Congress.
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A Constitutional Congress? (2014)
A Constitutional Congress?
The Weekly Standard, October 27, 2014
How the legislative branch can resume its rightful role
What difference will it make if the Republicans win the Senate and hold the House in November? The House can already block Democratic legislation Republicans do not like, and President Obama would still be able to veto Republican legislation he does not like. The Republicans are talking of a positive, problem-solving agenda. That seems to mean passing some constructive bills President Obama could sign, thereby signaling that Washington can get things done, and some others the president would veto, thereby signaling even better days ahead following a GOP presidential victory in 2016.
Such a strategy would hold serious potential. Divided government can be both partisan and productive—as in the second Clinton administration, which brought both an impeachment trial and balanced budgets (and, for the Republicans, the prelude to control of the White House and both chambers of Congress after the 2000 elections).
A Republican Congress facing a Democratic president could, in addition, do something of transcendent importance, something that would furnish a stately frame to its policy initiatives. It could reverse Congress’s institutional decline and begin to restore the elected legislature to its vital position in our constitutional balance of power.
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