Delegation undermines separation of powers and the competition between Congress and the executive

|The Volokh Conspiracy |

In the first post about my forthcoming article, I explained that the conventional view of delegation—that Congress gives up power to the executive—fails to account for the individual benefits that legislators can realize through delegation. This poses a unique problem, because delegation undermines what I call the "collective Congress" and its institutional power.

The Constitution establishes a multimember Congress that can exercise its legislative power only collectively, a bedrock requirement of representative government. This simple yet fundamental requirement of collective lawmaking appears throughout the text and structure of the Constitution, as my article explains in some detail and which I will not go through here. Importantly, the Constitution gives members of Congress no power to exercise separately and specifically prohibits them from serving as executive officers or participating in the appointment or removal of executive officers (except through impeachment).

The collective Congress is a structural feature of the Constitution, much like the unitary executive. To say Congress is collective and the executive unitary is to state an obvious truth, but one that relates in fundamental ways to the power and restraints of the different branches (see Steven Calabresi and Kevin Rhodes's classic article on the unitary executive). We largely take for granted the existence of collective lawmaking, and yet the idea that the legislative power must be exercised collectively has important consequences. In particular, it reinforces the Constitution's careful separation of the legislative power from the executive power and provides some guidance in identifying the often elusive distinction between them.

The Framers designed the structure of the federal government so that each branch would have the "the necessary constitutional means, and personal motives, to resist encroachments of the others. … Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place." James Madison, The Federalist No. 51.

Madison's observation, however, raises a particular question about how the interests of representatives and senators will be connected with the constitutional rights of Congress. How does a multimember body representing diverse interests defend the prerogatives of Congress as an institution? The question is especially pressing given today's weak and polarized Congress.

Collective lawmaking is what aligns the interests of the congressmen with Congress. Since members are given only a part of the collective power, their personal ambitions can be furthered only through the institutional strength of Congress and its power in relation to the other branches. Congress is a "they," but the Constitution allows it to exercise legislative power only as an "it."

Open-ended delegations undermine this essential structural safeguard by giving legislators a way to exercise power and control outside the cumbersome and difficult process for enacting legislation. Collective decisionmaking (at least in theory) limits the ability of individuals or groups to pursue narrow self-interest, by requiring negotiation over competing interests and public lawmaking. Yet delegation allows individual lawmakers to influence administration of the laws.

This dynamic weakens the institution of Congress by shifting the energy and focus of legislators away from the lawmaking process. The problem is especially acute because while delegations fracture the interest of Congress, they reinforce the confluence of interest between the President and his office. Delegations give the executive more discretionary power to shape and to centralize policymaking, dramatically expanding the role of the executive branch.

The conventional view assumes that ambition will counteract ambition to prevent excessive delegations. Yet delegation erodes the structural rivalry between members of the Congress and the executive. Instead of competing over policymaking, they will often agree on open-ended delegations of authority to agencies in order to expand the discretionary power of both legislators and administrators.

This collusion between the political branches undermines individual liberty by allowing both branches to combine lawmaking and law interpretation. When the non-delegation principle is ignored, the lines between the legislative and executive powers are blurred. Under delegated administrative discretion, agencies can function as lawmakers and lawmakers can function as administrators.

The executive inherently combines various functions in the course of interpreting statutes and implementing them; but members of Congress have been given no executive or administrative functions whatsoever. Yet delegation to agencies can simultaneously serve as a kind of self-delegation to members of Congress, allowing them to shape policymaking individually in contravention of the text and structure of the Constitution.

Thus, contrary to the conventional assumption, competition between Congress and the executive will fail to safeguard against delegation and the expansion of federal power. In my next post, I will consider some potential solutions to this problem.