The greatest political revolution in the United States since the establishment of the Constitution has been the shift of power away from the lawmaking institutions of republican government to an oligarchy of unelected experts who rule over virtually every aspect of our lives.
Congress is a significant cause of the problem. Under the original design, Congress’s role was to deliberate about the common good and pass laws of general applicability. But instead, it built the bureaucratic state by delegating its powers to the innumerable agencies it created with broad power to make rules over individuals, industries and vast aspects of society.
The result is that most of the actual decisions of lawmaking — decisions previously the constitutional responsibility of elected legislators — are in the hands of administrators whose “rules” have the full force and effect of laws passed by Congress.
And as Congress expanded the bureaucracy under executive control — creating and delegating while neglecting budgeting and relying on after-the-fact oversight — it was also empowering the presidency and fostering the executive overreach prominent today. Like never before, the president can direct the bureaucracy — through executive orders, administrative discretion, creative interpretations of poorly written legislation, and willful neglect and disregard of the law — to policy ends, with or without the consent of Congress.
The result is an increasingly unbalanced structural relationship between a powerful executivebureaucratic branch willing to exert administrative power and a weak legislative branch unwilling to exercise its constitutional powers to check the executive or rein in a metastasizing bureaucracy.
If this becomes the undisputed norm, accepted not only among the academic and political elites but also by the American people, as the defining characteristic of the modern state, it imperils our great experiment in self-government.
But Congress is also the key to the solution.
It may be a prudent option to assert checks and balances through litigation; a successful lawsuit could prevent things from getting worse. But let’s be clear: courts are not going to solve this problem.
Resolution will only come when Congress rebuilds itself as a co-equal branch of government in our separation of powers system. This is the solution envisioned by our Founders, and is consistent with popular government.
The Constitution is grounded in the principle that governments derive their just powers from the consent of the governed. This means that the first step is for Congress to confirm its representative legitimacy by ceasing to delegate its power to unelected bureaucrats and to assert its authority to approve or reject any new rules, and reassess and reauthorize any existing ones.
Congress needs to relearn the art of lawmaking so that legislative language clarifies rather than confuses congressional intent, controls rather than widens executive discretion, and insists on rather than undermines judicial review of executive agencies. Better lawmaking up front will result in real oversight after the fact. Regular legislative order, especially the day-to-day back-and-forth of authorizing, appropriating and overseeing the operations of government, will do more than anything to restore the powers of Congress and get control of our unlimited government.
The one place where the power of Congress is not entirely lost — and where there is real opportunity for gaining leverage over an unchecked executive — is Congress’ power of the purse. Done well, it will prevent Congress from continually getting cornered in large, messy and unacceptable omnibus budgets at the end of the year, the settlement of which works to the advantage of the executive. Strategically controlling and using the budget process will turn the advantage back to Congress, forcing the executive to engage with the legislative branch and get back into the habit of executing laws (and administering programs) enacted (and authorized and appropriated) by Congress.
Fully restoring constitutional government will require more than this, but these steps will go far in rebuilding Congress and restoring the balance in our constitutional system. Utah Sen. Mike Lee and Texas Rep. Jeb Hensarling have launched a project of House and Senate conservatives to reclaim Congress’ legislative powers. The central part of House Speaker Paul’s Ryan’s policy agenda, A Better Way, is a legislative plan for government reform — focusing on checking executive overreach, reining in regulators, reestablishing budget control, and enforcing transparency — that lays out the most extensive agenda for constitutional restoration in decades.
If Congress does not act to correct the growing tilt toward executive-bureaucratic power, the structure of our government will be fundamentally, and perhaps permanently, altered. But it’s not too late. Congress only need find its atrophied constitutional muscles, think strategically, and once again act as the first branch of constitutional government, regardless of who is the next president.
• Matthew Spalding, Ph.D., is the associate vice president and dean of Educational Programs for Hillsdale College in Washington, D.C., overseeing the Allan P. Kirby Center for Constitutional Studies and Citizenship.