Republicans’ cognitive dissonance about Congress
The Supreme Court may soon finally start to rein in the sprawling administrative state, returning authority to make laws to Congress. Conservatives have dreamed of this restoration of the Constitution’s separation of powers between the legislative and executive branches. But Congress clearly isn’t equipped to decide the hard questions that lawmakers have simply left to unelected bureaucrats. And Republicans have no one to blame for this withering of the legislative branch but themselves.
In Gundy v. United States, four of the court’s Republican-appointed justices called for reviving the non-delegation doctrine. For the last 85 years, the courts have featured that, when delegating legislative power to administrative agencies, Congress give an “intelligible principle” on which to base their regulations. Although Justice Brett Kavanaugh didn’t participate in Gundy, if he agrees with his conservative colleagues, the Supreme Court might soon issue a ruling that forces Congress to revisit the laws from which federal agencies draw their vast powers. If that happens, does Congress have the capacity and competence to make these important decisions?
Congress is weaker than ever before, thanks to decades of congressional Republicans grandstanding over symbolic cuts to their own budgets. Even the Capitol grounds are in disrepair. This self-defeating strategy traces back at least to the Republican Revolution of 1994, when they campaigned on cutting the legislative branch (then a Democrat stronghold). After a landslide, they gleefully followed through. Predictably, the end result wasn’t a smaller government, but a more expansive federal bureaucracy that is less accountable to Congress than ever before. Since 1995, while congressional staffing has decreased by 20 percent federal discretionary spending overall has increased by 37 percent.
Today Sen. Rand Paul (R-Ky.) still holds press conferences featuring Publishers Clearing House-style checks of unspent office funds, and he isn’t alone. House Republicans recently voted unanimously to try to block a 3.6 percent increase in legislative branch appropriations. And now the entire bill—whose $4.8 billion isn’t big enough to be a rounding error in our $4.7 trillion federal budget—is indefinitely held up over a 2.6 percent compensation increase merely to keep up with inflation.
Lawmakers have effectively ceded the lawmaking function to unelected, unaccountable agencies—without effective oversight. Congress rarely, if ever, passes significant legislation anymore. Even when it does, it leaves the important details for agencies to work out. The periodic reexamination and reauthorization of agencies also essentially stopped two decades ago.
Chief Justice John Roberts, writing in a 2013 dissent, warned of the growing “authority administrative agencies now hold over our economic, social, and political activities.” Conservative and libertarian legal scholars have spent decades critiquing the twin legal pillars of today’s unchecked administrative state: Congress’s excessive delegation of its legislative power to the administrative state and the deference that courts afford to agency interpretations of their own powers.
To the extent that the courts curb the discretion ceded to administrative agencies, policymaking will revert to the branch set forth in Article I of the Constitution: Congress. To make such decisions, Congress will need to expand its staffing and in-house policy expertise, building a much deeper bench of learned professionals with specialized knowledge of the many areas under the federal government’s purview. This is a far cry from where we are today.
Currently, congressional committees have 33 percent fewer staff than in 1994, legislative branch support agencies (such as the Government Accountability Office and Congressional Research Service) have 39 percent fewer total staff, and Congress lacks the deep technical expertise of the now-defunct Office of Technology Assessment.
Even if the courts don’t upend the modern administrative state to the extent we might like, strengthening Congress could go a long way towards helping rein it in. For instance, more staff can help it better exercise Congress’s oversight role, and check career bureaucrats so they can’t run circles around lawmakers. (Notably, GAO reports a savings of $124 for each dollar of its budget.) And should Congress muster the political will to cut back the enabling statutes that give federal agencies such broad powers, Congress must thoroughly understand these laws if it is to ever rewrite them.
A stronger Congress can also be bolder in exercising the power of the purse. As James Madison wrote in Federalist 58, the House “cannot only refuse, but they alone can propose, the supplies requisite for the support of government.” This can’t happen without a deliberate shift in rhetoric and strategy towards reclaiming Article I (as some Republicans, like Sen. Mike Lee (R-Utah), have already done).
The first step is for congressional Republicans to turn their zeal for cutting government away from cutting Congress, and recognize that efforts like Sen. Paul’s oversized checks aren’t helping fix our $24 trillion national debt or runaway administrative bureaucracy.
Berin Szoka is president at TechFreedom. Zach Graves is head of policy at Lincoln Network. Ryan Radia is senior policy counsel at Lincoln Network.
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