Administrative Law

Can We Make Congress Legislate Again?

Tools exist to modify the incentives for legislative action, and Congress could deploy some of those tools itself to encourage more regular reauthorization and modernization of federal regulatory programs.

|The Volokh Conspiracy |

Congress does not seem to legislate much anymore. One consequence is that federal agencies are left trying to address contemporary problems under authorities delegated by Congress years—and in many cases decades—ago. Depending on the nature of the program, this can mean that agencies are forced to use obsolete statutory authorities that may not reflect contemporary knowledge or understanding of the relevant issues, let alone contemporary political support. And because the legislative process has a strong status-quo bias, it can be difficult to update federal law on a regular basis to address obsolescence concerns.

In the environmental context, for example, there has been relatively legislative action over the past twenty years. Other than the Toxic Substances Control Act, none of the major environmental statutes has been meaningfully revised this century. (There have been minor revisions to select provisions of the Safe Drinking Water Act and CERCLA, aka "Superfund.")  But it's not as if environmental problems, and our understanding of such problems, has stood still. In some cases, the Environmental Protection Agency (EPA) is able to address contemporary problems with extant authorities. In others, however, extant authorities do not cut it.

A related problem is that delegations of authority enacted decades ago remain on the books long after the problems they were enacted to address have passed. Such delegations remain on the books to be deployed in new circumstances without legislative approval. So, for instance, President Trump invoked the International Emergency Economic Powers Act in 1977 (IEEPA) to impose tariffs on Mexico in response to an alleged illegal migration
"crisis." Whether or not one believes there is an "emergency" at the southern border, no one can seriously maintain that this is the sort of problem Congress sought to delegate authority to the President to address with the IEEPA, yet the authority exists, and is difficult to repeal.

Many of the problems cause by obsolete statutory authority would be addressed were Congress willing or able to revisit such laws on a more regular basis. Is such a thing conceivable? Perhaps, or so Chris Walker and I argue in our paper "Delegation and Time."

Legislatures at all levels of government have found that one way to induce more regular legislative engagement and revision of existing statutory programs is through various forms of temporary legislation—legislation that expires, sunsets, or reverts to a particular baseline if not regularly reauthorized or re-approved by the legislature. As experience across a wide range of subject areas shows, meaningful reauthorization requirements can induce legislative action, which can help address concerns about statutory obsolescence as well as concerns about democratic legitimacy.

Enacting legislation is difficult. To legislators, moving legislation is "costly." Thus it is often preferable for legislators to leave things be than to try to modify or revise existing laws. Among other things, this may help legislators avoid uncomfortable votes over whether to grant agencies the authority to embark on new initiatives. Yet if the alternative to the legislature's failure to act is not making do with an outdated law, but seeing a law expire completely, or revert to a potentially undesirable baseline, legislators may have greater incentive to act. Indeed, this may explain why even recent Congresses, which have been generally loathe to enact much substantive legislation, have been able to act to reauthorize farm programs, the ExIm bank, and other programs that would otherwise expire.

In "Delegation and Time," Chris Walker and I argue that Congress should explore greater use of such mechanisms as a means of incentivizing more regular reauthorization of federal programs, regulatory programs in particular. Among other things, this would provide a greater opportunity for Congress to update existing law to account for changes in scientific and technical understanding or shifts in popular opinion. Amending or modifying legislation that is going through the legislative process anyway is far easier than trying to enact a reform bill from scratch.

While we believe that such tools could be useful across a wide range of contexts, we resist calls for an across the board "sunset" of existing grants of authority, such as has been used in some states, because we are not sure that this creates the best baseline for all programs, either due to reliance interests or specific technical considerations. It is unlikely that one-size-fits-all, but some form of temporary legislation or incentivized reauthorization is likely to be appropriate to most federal regulatory programs.

The larger point is that we should not view the legislative process, and the incentives to legislate, in static terms. Many variables affect the costs of legislative action, including many variables that are within Congress's control. Just as rule changes making it easier or more difficult to legislate affect the likelihood that Congress will enact a new law, rule modifications or prior enactments that shift the costs and benefits of the status quo as compared to potential legislative alternatives affect the chance that Congress will act as well. If the failure to act means the end of a program altogether, legislators representing affected interests may be more willing to come to the table and negotiate reforms.

If we want Congress to legislate more often—even if only to modernize and revise the laws on the books—we need to think about how to alter the incentives that Congress faces, and recognize that not all of these incentives are best thought of as political. Some are a function of institutional constraints and prior enactments. And if Congress would like to reassert its own authority, particularly vis-a-vis the executive branch, more regular legislation would accomplish this end, and there are tools Congress could use to make this more likely to happen.

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  1. The reason Congress doesn’t legislate much anymore is (1) most of the time, we have divided government, and opposition parties have found that the way to attain political success is to deny the other side bipartisan “victories” and to pass meaningless “messaging” bills instead; and (2) even when government is undivided, our system lacks party discipline and gives way too much power, formally through the filibuster and informally in various ways, to dissenting legislators.

    Which gets back to the mistakes of the framers of this country. Because their central goal was preserving slavery, they designed the institutions of our government to ensure that the South would have permanent veto power over efforts to end slavery rather than trying to deliver good government.

    What we need, simply put, is a parliament. This is the superior system, found in many countries in the world whose institutions weren’t designed by slaveholders. If Republicans get elected, they ought to get to try to enact his program. If Democrats get elected, they ought to as well. And if any government gets too unpopular, new elections can be called at any time and don’t have to wait until a fixed period.

    But given we are stuck with the institutions we have, it’s partisan gridlock forever. The American framers are among the most overrated people in all of history. Thanks, guys.

    1. “central goal was preserving slavery”

      Historic revisionism at its rawest.

      The “central goal” was forming an effective government for a new nation.

      The 3/5 compromise was, wait for it, a compromise to accomplish the real central goal. Same for the delayed importation ban.

      None of the other features are or were pro-slavery. None.

      Would you have preferred two nations, one inevitably falling into British influence and the other French? Constantly fighting each other as they raced across the continent?

      1. Bob, slavery was nonnegotiable. Whereas things like democratic elections, distribution of powers, the weight of votes, etc. were all up for negotiation. The only dealbreaker was slavery. No matter what, the government would protect it.

        The only compromise on 3/5ths was over counting population. But slavery itself was no compromise. It was essential. It was the principle we were founded on. The British banned slavery well before we did.

        1. And to be clear, no, the American revolution was not a good thing. It was especially horrible for blacks and Indians, and really only a good thing for white male aristocrats in thw colonies who would get to pay lower taxes.

          This is so often the case historically, by the way. Oppressive conditions give rise to revolutions, but you just get different forms of oppression after a successful revolution.

          1. “the American revolution was not a good thing”

            The fundamental error reveals itself.

            When you err on the main question, all sorts of smaller errors follow.

            1. It’s only an error if you don’t care about black people.

              1. The fact that you think the Brits still would have outlawed slavery on anything but possibly the home island when one of their major colonies relied on it heavily is amusing to say the least.

              2. If the American colonies had stayed in the British Empire, rather than stopping slave trading in 1808, there would have decades more of importation of slaves into the US – according to trade rate records, about 4-5 million more people kidnapped from their homes and sold in the American colonies. Since the death rate among transatlantic slaves was close to 50%, you’re actually talking about 10,000,000 people from Africa dead or enslaved in the British colonies. Not counting for smuggling, either.

                Of course, you are also assuming that this what-if British Empire would have stopped slave ownership in 1838, when the real-world British actually banned slavery in their overseas territories. With millions more slaves and a VERY highly profitable cotton trade supplying the mills that drove England’s economy, it would be foolish to assume the laws would pass without much more resistance.

                You’re positing a multi-decade “what-if” ahistorical scenario in the first place, so it is impossible to give ‘accurate’ answers on any front. But your baseless assumption that Britain would for some reason behave exactly the same way in your imaginary world as it did in a very different real world is just foolish.

                1. Yup. Dilan hates black people.

                2. Plus the thing that made cotton so profitable was the cotton gin, which wasn’t invented until 1793, well after the ratification of the Constitution. Prior to that slavery was dying a natural death.

                  1. This idea that the Constitution was adopted for the primary purpose of preserving slavery is a fairly recent bit of historical revisionism, part of the left’s efforts to destroy the American people’s regard for that document, so that it will stop being an obstacle to their seizing complete power.

                    It was a compromise designed to keep the fledgling country together in a dangerous world; The opponents of slavery had thought, wrongly as it happened, that slavery was going to disappear regardless, and all they had to do was kick the can down the road, and in the mean while prevent it from spreading to the free states.

              3. The founding father’s concept of freedom — rights are inherent and not a gift by government, and government is created to secure those rights, and is given defined powers and no others, was perfectly fine. The problem was who they extended them to

                The subsequent 200 years has been a long process of extending that to slaves, women, and other minorities. The core concept, freedom inherent, has been a boon to humanity, regardless of its messy origins (to put it mildly.)

              4. Only 5% of the blacks taken out of West Africa wound up here. Why is the USA the only country that has to execrate itself forever over slavery?
                Slaves in the American colonies and the USA were orders of magnitude better off than slaves in other countries.
                Blacks in America today are orders of magnitude better off than blacks in Sub Saharan Africa.
                These are historical facts. I wonder if we will ever get to the point where people understand them and their ramifications.

                The American Revolution was a great thing for human liberty (esp compared to the Revolution a decade late in France, which is probably a wonderful event in your book). It has served ever since as a model for peoples who wish to throw off colonial power.
                These are also historical facts.

                The Slavery provisions in the Constitution were–as has been made abundantly clear by everyone who has studied this matter–were a compromise to limit the power of slave states, while still forming a government strong enough to protect itself.
                The Framers wanted a stronger central government than the Articles allowed–but not so strong that we ended up with a de facto monarchy.
                These are also historical facts.
                We have too many laws and regulations as it is. If they repealed 4 for every new one they passed, that might be good; but, the notion that Congress is only “doing its job” when it adds to the US Code or the CFR is post New-Deal bullsh*t.

                1. “It has served ever since as a model for peoples who wish to throw off colonial power.”

                  Some of the protestors in Hong Kong are waving the US flag right now. Its the principals in the Declaration and Constitution that motivates that.

          2. So monarchy was better than freedom? Even with a whacko ruler?

        2. “slavery was nonnegotiable.”

          Yet it was in fact negotiated.

          “Delegates opposed to slavery proposed that only free inhabitants of each state be counted for apportionment purposes, while delegates supportive of slavery, on the other hand, opposed the proposal, wanting slaves to count in their actual numbers.” wikipedia

          “The British banned slavery well before we did.”

          Yes, but well after the Constitution. In 1833.

          England banned the slave trade exactly at the same time as the US did. Same month and year.

          1. 1833 is 32 years of additional ffreedom. That’s a lot.

            And no, COUNTING slaves was negotiated. Slavery was not. Indeed, the Congress prohibited debate of slavery on the floor of the House. It was this country’s only untouchable principle.

            1. That “prohibiting debate” thing was a very late and short-lived provision. You make it sound like it was the law from 1789-1861. Disingenuous, maybe; or, maybe ignorant.

              1. It was 8 years in fact, 1836 to 1844.

            2. Unless you count British India, of course. Where slavery was only made illegal in….1861.

        3. The Brits didn’t ACTUALLY ban slavery that long before America. The slavery absolution act was passed in 1833. But the last slaves weren’t freed really until 1840. This of course doesn’t count British India and Sri Lanka, which wasn’t included under the act, and had more a than a million slaves.

          Further enforcements were made in 1843, which made it illegal for a member of the British East India Company (which administered India) to own a slave. But slavery actually being made illegal in India wasn’t put into the penal code until 1861.

          1. Yet de facto slavery existed in the US, especially the South, long after the Civil War.

            1. People were bought and sold in the South long after the civil war? There were open air people markets in most Southern cities?

              Huh.

              1. Don’t be dumb. Open air markets for people isn’t a necessary component slavery.

                And you know what de facto means.

                Don’t try and be a pedant around here – too many pros.

                1. De facto slavery would be that people were slaves in all but name.

                  Slaves are property – that is in fact the literal definition. If people are being bought and sold against their will, that is in fact slavery, even if the law supposedly banned it.

                  Since this wasn’t happening, there was, in fact, no slavery in the South or elsewhere in the US “long after” the Civil War.

      2. “Historic revisionism at its rawest. ”

        Also accurate. The south’s economy was based on slavery and they weren’t willing to voluntarily undergo the economic turmoil that removing slavery would have created. (Much less the social turmoil) The framers wanted the colonies united, and the south wouldn’t have joined up if they could have had the slavery rug pulled out from underneath them.

        “The “central goal” was forming an effective government for a new nation.”

        The central goal was keeping the new nation from breaking up into several smaller new nations. (Because they would have been played against each other by the European colonial powers. The Articles of Confederation had failed in this goal, because the federal government didn’t have enough power. To get the slave states to give up some power, certain guarantees were made to them… regarding one issue, and one issue only.

        1. “The central goal was keeping the new nation from breaking up into several smaller new nations.”

          You are just restating my position. To keep the colonies united an effective government was needed.

          1. If you’re dissatisfied that we agree on part of the answer, I’m afraid that’s your problem, not mine.

    2. No, their central goal was to create a system of self-government with a weak central government and powerful states, because decentralizing government power is the way to maximize liberty.

      1. They didn’t care about “liberty”. They OWNED people FFS!

        1. “They didn’t care about “liberty””

          Compared to what though? Seems they cared about liberty to an unusual degree relative to their time in history. SOME of them had slaves, yes. There were also abolition societies from the beginning and states banning slavery within their jurisdictions.

          1. This is true; the fledgling government was better than others, maybe better than all others at the time, but allowing slavery meant that it was not “free” and not based on “freedom”.

            1. ” it was not “free” and not based on “freedom”.”

              And our government today most certainly isn’t either. Maybe even less so than then.

              Still, it seems like the founders at least had a compelling theory with the decentralization of power.

            2. You and everyone else currently enjoy their concept of freedom. It was fine, they just didn’t extend it to everyone.

              It’s ludicrous to lambaste it because of that. You have to get here from there, and it is a long and messy and world-leading process.

        2. “They didn’t care about “liberty”. They OWNED people FFS!”

          Several people have owned Dilan in this thread, and I suspect that they all care about liberty.

      2. “their central goal was to create a system of self-government with a weak central government and powerful states, ”

        You’re referring to the Articles of Confederation, not the Constitution.

        1. Not at all. The Constitution obviously framed up a very weak central government, especially compared to what we have now, but things started going off track almost right from the start. This is true despite the fact that the Articles of Confederation had an even weaker yet central government.

      3. ” decentralizing government power is the way to maximize liberty.”

        Are you COMPLETELY unaware of American history, or just the period from 1861 to 1868?

        1. What’s your point here? The great liberty of 500,000 dead in America’s ugliest, bloodiest war? That Lincoln waged for the sole purpose of consolidating government control?

          1. Sorry, I should have spelled it out for the mentally deficient to follow along, so you wouldn’t get left behind.

            In the case of the period from 1776-1789, the premise offered partially holds true. The revolution was a rejection of a VERY strong central government, and the result was greater freedom for all the non-dark-colored Americans. However, this requires ignoring the fact that the central government was strengthened at the end of the period.

            However, in the case of the period from 1861-1868, the premise does not hold true. The 14th amendment was a strengthening of the central government, and increased the freedom of all Americans, most notably but not limited to the darker-colored ones.

            Note that whining about what Lincoln did in 1868 just makes you look rather stupid, as he was rather thoroughly dead at that time.

            1. As usual, you are almost too dumb to be worth conversing with. Nonetheless, it seems you are agreeing with my first premise about what the founders were doing, and disagreeing with my more general premise that decentralization of authority is the best way to maximize liberty.

              Your contention is that the 14th amendment was an instance where centralization of government power furthered liberty — and therefore, your argument goes, it cannot be true that decentralization is the best way to maximize liberty. (And perhaps following that logic, centralization in general would be the way to advance liberty?)

              It’s quite a weak and myopic argument. On balance the events of 1861-1868 did not advance liberty, in fact, the opposite was accomplished as hundreds of thousands of people were killed, starved, imprisoned, and brutally oppressed, and the central government became forever more powerful and tyrannical. The end of slavery was a wonderful result on the other side of the ledger, albeit one that would have happened relatively soon anyway. In fact there was interest among the Confederate leaders to end slavery themselves in a gambit to gain the support of Britain and France. Meanwhile, on the other hand, Lincoln’s offer was to keep slavery if only the south would return to the union, an offer which they could have taken at any point but were never interested in. Anyway, even if you could point to an instance where centralization of government control advanced liberty, that would not prove that this is best way to maximize liberty over the long term. Far from it.

      4. their central goal was to create a system of self-government with a weak central government and powerful states,

        Then why not stick with the Articles of Confederation?

      5. The whole point of the Constitutional Convention was to make the central government significantly STRONGER than it was at the time. On that point there is no debate.
        How MUCH stronger is debatable.

        1. Agreed. What’s not debatable is that it would still be a relatively weak central government with very few enumerated powers and no ability to enforce “rights” including the bill of rights against the states.

          1. Which is why an understanding of the period from 1861-1868 is rather necessary to comment knowledgeably on the subject.

    3. The American framers are among the most overrated people in all of history.

      Now that is how you troll.

      By the way, how are those superior parliaments working out in Spain, Italy, Greece and Israel of late? I suppose I could even throw in the mother parliament as well.

      1. Don’t forget France.
        5 Constitutions since 1789, and they still can’t get it right.

  2. A libertarian wanting a lot of new laws. Sad.

    Gridlock is good. Government creates two problems each time it tries to solve one.

    1. “A libertarian wanting a lot of new laws. Sad.”

      Meh. A libertarian wants the laws to reflect a maximum of liberty. This requires that old laws be periodically examined and, if necessary, re-written.

      The writing of laws isn’t inherently a net loss of liberty. Viewing it as if it was is just partisanship and ideology over reality. Some of us prefer a government that at least tries to be rooted in reality.

      1. yeah, because Congress keeps making old laws better. not.

        1. Come visit the reality. It’s not as bad as you’ve been led to believe. If you don’t like it, you can go back to blind idealogy.

    2. Reauthorizations are not new laws. Gridlock is generally good when it prevents government from creating new programs or laws. It is a lot less good when it prevents government from fixing prior errors.

      1. And sunset provisions requiring renewal can make politicians ok with revising old laws, but can also make them create new iffy laws like terrorism spying legislation, immediately abused for normal law enforcement. “Hey, it’s less of a freedom risk because it expires.”

        Also, legion are the “temporary taxes” that weren’t.

        1. I think I see your point. Reauthorizations do give Congress a new opportunity to screw things up. But as long as we have a “professional” Congress (that is, one that’s in session full-time instead of having to do useful work to feed their families), they have the opportunity to screw things up regardless. They have the same number of hours in the year.

          My hope is that by forcing them to spend more time on reauthorizations, they might have less time to invents new trouble.

  3. “Congress does not seem to legislate much anymore.”

    This is because 50% of our total national major parties don’t believe in legislating any more. Well, Mitch doesn’t, anyway, and the rest of his party seems to prefer to leave it up to him.

    1. This is because 50% of our total national major parties don’t believe in legislating any more. Well, Mitch doesn’t, anyway, and the rest of his party seems to prefer to leave it up to him.

      And the other 50% of our total national major parties believe in using legislation to steal and enrich themselves and their cronies.

      Thanks, but I’ll take the party that doesn’t legislate over the party that wants to use legislation to hurt me.

      1. “And the other 50% of our total national major parties believe in using legislation to steal and enrich themselves and their cronies.”

        Making that total 100%.

        “I’ll take the party that doesn’t legislate over the party that wants to use legislation to hurt me.”

        I’ll take “false dichotomy” for $1000, Alex.

    2. True this; one person decides whether or not Congress does anything legislatively. He is the absolutely powerful Czar of legislation! Save for approving Leonard Leo judge or judges du jour, he blocks everything else. And the leader of the Congress today posted a picture advocating the deaths of Merrick Garland and Amy McGrath.

  4. “One consequence is that federal agencies are left trying to address contemporary problems under authorities delegated by Congress years”

    Whether or not to “address a problem” is itself a legislative decision, as is the determination whether something actually constitutes a “problem”.

    I should think a major reason why a slow pace of legislation would be expected in a rational system, is just that, eventually, you’ve passed all the laws that really needed passing, and you’re down to the optional or debatable stuff.

    1. One of the things that always needs to be addressed is whether or not we still need all the laws that were passed previously.

      1. This is true, but politicians would probably classify repealing obsolete laws as un-legislating rather than legislating.

        1. I’ve seen proposals for a “House of Repeal”, a separately elected chamber of Congress whose only job was identifying and repealing laws that had outlived their usefulness.

          It would require a constitutional amendment, of course, but strikes me as a good idea. Maybe add a maximum duration for any law of 25 years, 50 if adopted with a sufficiently large supermajority?

          1. You don’t really need a House of Repeal. You could simply allow either House or Senate, acting alone, to repeal a law- ie a law remains a law only so long as both Chamers are content that it should be.

            But then you need to bear in mind the response. Pols will protect their laws with poison pills, so that if the other side captures a Chamber and tries to repeal a law, thry will find that some of their own goodies have to be sacrificed. This is exactly what we currently get with spending Bills – you can have your three new aircraft carriers in exchange for giving us $40 billion to spend on teacher’s wages.

            Crafting a rule allowing either Chamber (or a House of Repeal) to repeal part of a law is going to give you severability issues on steroids.

            My own preferred fantasy rule is to allow either Chamber to repeal or amend all or part of any law, so long as the repeal does not additionally restrict the liberty of any US citizen adult, nor increase any penalty for an existing restriction.

            So – for example – you could repeal a ban on selling marijuana, or reduce the penalty for doing so. But suppose selling marijuana carried a 5 year jail sentence, and then one Chamber reduced the penalty to 2 years, then neither Chamber would be able (on its own) to repeal the reduction to 2 years to put the penalty back to 5 years.

            1. Just require via amendment that all laws expire every 10 or 20 years unless renewed. Force politicians to re-justify them periodically.

              And no, that “there’s too many to do this” doesn’t help their case any.

            2. The idea behind the House of Repeal is that you’d have a group of politicians whose only way to look like they were productive would be repealing things, so they’d have a motive to do it, not merely the capacity. (Which Congress already has, but lacks the motive to use.)

  5. If Congress were to legislate they couldn’t waste all their time with endless, witch hunt investigations into Trump. They might have to get rid of the failure that is Obumacare, confront the deficit, impeach liberal judges that ignore the Constitution, and do something about the illegal immigration nightmare. It is just a lot easier for the Dems to try to make political hay out of everything and anything.

  6. No. Next question, please.

  7. Congress does not seem to legislate much anymore.

    Good! Let’s keep it that way!

    One consequence is that federal agencies are left trying to address contemporary problems under authorities delegated by Congress years—and in many cases decades—ago.

    Next, hopefully, we can stop passing spending bills and continuing resolutions and starve these federal agencies of money and staff.

  8. Whenever I miss the anarchists I come back here for a short while and here they still are.

    1. Someone has to keep the flame of freedom lit.

  9. The less Congress legislates the better. I wish they would all run for President and keep interviewing Mueller all day. Then we just need a Constitutional amendment so laws automatically expire after 10 years.

  10. It is well to remember that the national government designed by the founders was designed to be very limited. It was only supposed to act when action was be scary, that is not very often. The modern conceit that Congress is not doing it’s job is borne of the very specific circumstances of the great Depression, and WWII, when FDR violated of the few unwritten constitutional provisions established by George Washington, by running for a third and fourth term.

    The natural state of Congress is inaction. Any other state threatens liberty.

    1. Sure, but Adler’s point is that that ship has sailed and we have thousands of zombie laws stumbling all over the country busily being not at all limited. Whatcha gonna do about the accumulated sediment of law that already blankets and suffocates the land ? Inaction isn’t good enough. What is needed is reaction.

      1. Spare me “That ship has sailed.” This isn’t the 17th century, when once a ship left port it couldn’t be recalled.

        Turn that ship around and sail it back, then.

        1. Sure, but that does mean that you can’t start by fixing a block to the wheel that stops the captain making a significant course correction.

          Before you insist that Congress only act within strictly limited powers, somebody has to go round nuking all the existing laws that exceed Congress’s constitutional powers. You could try relying n SCOTUS of course. Good luck with that.

          Moreover with nearly 250 years of experience we can see some of the holes in the founders’ scheme. Never mind Roberts’s effort on Obamacare – it’s clear that if Congress troubles to label things as taxes it can go way beyond its enumerated powers.

          To achieve limited government you don’t just have to turn the ship round and sail it back to port, you also have to make substantial repairs to the port .

          1. Agreed about that. I’ve likened our Constitution to an old OS on a computer that’s been running without a reboot for way too long. It’s not just a matter of accumulated memory leaks or the drive needing to be defragged, all the exploits are now known, and won’t be forgotten!

            Even if you could “reboot” to a clean state, any political script kiddie could compromise the system again in record time without even having to invent any new hacks. It’s not just a matter of cleaning up the accumulated hacks and work-arounds, all the security holes need patching.

            “it’s clear that if Congress troubles to label things as taxes it can go way beyond its enumerated powers. ”

            This is because the N&P clause is being interpreted by the courts as more of a “convenient, and eh, whatever” clause. Which relates to the grossest of those security holes that needs fixing: The federal judiciary is selected by the very people the Constitution it interprets was intended to restrain.

            This was less of a problem prior to the 17th amendment, as even elected Senators had to worry that a sufficiently irate state government could reclaim the power to pick Senators. But now they are entirely creatures of the federal government, and federal judges are chosen largely on the basis of being willing to let the federal government do anything, Constitution be damned.

            But I don’t see any of this being fixed without a constitutional convention, and Congress will fight that with everything they have.

    2. “It is well to remember that the national government designed by the founders was designed to be very limited. It was only supposed to act when action was be scary, that is not very often.”

      When they started, they tried a powerless central government, and it failed a decade later. So they started over, with a stronger central government… which failed after 70 years. So they made the central government stronger (in 1868 and again in the 1930’s).

      Looking to the past for inspiration is well and good, so long as you also learn the lessons of history.

      1. The problem appears to me that they actually overshot a bit with the Constitution, the subsequent failures have been failures of excessive centralization of power.

  11. Congress not legislating sounds like a win to me!

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  13. Can We Make Congress Legislate Again?
    Not until someone stops gerrymandering. Candidates need to get more and more left of right wing radical to win their party’s nomination, and then look like flip-floppers to win the few independent voters in the center that actually decide elections. As long as this continues their will be no working together.

    1. This.

      So long as the biggest threat to reelection is a primary challenge members of Congress will seek to placate the more extreme members of their own party rather than cooperating with those on the other side.

      Also, so long as they rely on big money donors that is who they will respond to.

      In other words, you can make all the clever rules you want about sunset provisions and whatnot, but the basic structure of our politics serves to disincentivize Congress from passing anything.

      1. “So long as the biggest threat to reelection is a primary challenge members of Congress will seek to placate the more extreme members of their own party rather than cooperating with those on the other side.”

        The big problem there isn’t the gerrymandering, it’s the fact that for at least one party, a substantial portion of the voters actively disfavor working with the other guys. If the party voters wanted someone who’d work for their interest rather than the interest of the party, a primary challenge would be easily brushed off.

    2. “Not until someone stops gerrymandering. ”

      The Senate cannot be gerrymandered.

      The GOP House of 2010 to 2019 passed tons of bills, killed by the filibuster.

      The current House has passed lots too, killed by the GOP in the Senate.

      1. Two things
        1. Gerrymandering can affect Senate races if they discourage voting in a locked down district;
        2. The very FIRST people who will scream when gerrymandering stops will be black Democrats. (Have you looked at Elijah Cummings’ district?)

        1. One of the side effects of gerrymandering is that state party leaders actively seek to interfere with voting in districts likely to go to the other guys. So they get inadequate polling sites, broken down equipment, and other “dirty tricks” to suppress voting. That can affect Senate races.

  14. A fundamental problem is that the course of action most likely leading to ones remaining in power is very different from the course of action that might be in the country’s or the public’s best interest. Remaining in power often involves avoiding taking risks. Where issues are controversial and taking action might offend someone or lead to objections, doing nothing is often the course most likely to offend the least. It’s generally easier and safer to attack the people who do things.

    It’s not clear to me that sunset schemes will solve this.

    A republic depends on a concept of a public interest and people being willing to sacrifice and take risks for their country. If personal power and office becomes the primary goal of those who hold it, I’m not sure there’s that much one can do.

    1. “A fundamental problem is that the course of action most likely leading to ones remaining in power is very different from the course of action that might be in the country’s or the public’s best interest.”

      In theory, both parties work for the national interest. In practice…

    2. A fundamental problem is that the course of action most likely leading to ones remaining in power is very different from the course of action that might be in the country’s or the public’s best interest. Remaining in power often involves avoiding taking risks. Where issues are controversial and taking action might offend someone or lead to objections, doing nothing is often the course most likely to offend the least. It’s generally easier and safer to attack the people who do things.

      Yes.

  15. So long as the Speaker and the Majority Leader have the power to pretty much prevent anything they don’t like from coming up for a vote this won’t change.

    I personally would like a system where a significant minority, say 1/3, of the House or Senate can force a vote on a bill. Lots would be defeated, of course, but that’s part of the point. Members would be on record.

    Look, the fundamental job of members is to vote, yes or no, on legislation. So make them do that and establish a record for the voters to look at when the election rolls around.

    1. “I personally would like a system where a significant minority, say 1/3, of the House or Senate can force a vote on a bill. Lots would be defeated, of course, but that’s part of the point. Members would be on record.”

      That’s why they like it the way it is… they don’t have to vote on things where there’s no right answer (politically). One of the reasons Obama was the candidate in 2008 and not Hillary was because she had a Senatorial vote record on the Iraq War, and he didn’t.

  16. Typo: “relatively legislative action” -> “relatively *little* legislative action”

  17. INS v. Chadha eliminating the legislative veto is one factor that decreased legislation a lot. Almost all people agree that there are situations where the Executive Branch needs to act swiftly based on facts on the ground (even most libertarians will concede this in the case of directly being attacked by a foreign military, for instance, but the more regulation you have, the more this happens.) The legislative veto allowed Congress to cede to the President the ability to make such emergency declarations, but then check the President later one– even a one house legislative veto only indicated that “Congress would not have passed a law explicitly authorizing the President’s action.”

    Now the President can act “in emergency” and can only be checked by two-thirds of both houses overriding a veto; that’s far, far easier than passing a law, so Congress doesn’t legislate. Sunsetting is an attempt to restore some of the powers lost from legislative vetos; it might be the best remaining approach, but I do believe that it’s still a lesser result.

  18. “Congress does not seem to legislate much anymore.”

    This is true only as to Republicans, and only in recent years.

    https://www.vox.com/2019/5/24/18637163/trump-pelosi-democrats-bills-congress

    Republicans simply are no longer interested in governing and the measures proposed here won’t make any difference.

    1. Republicans aren’t interested in what Democrats call “governing”, that’s true enough.

      1. Oh there are plenty of Republicans who will propose legislation for symbolic effect. The Dems have no monopoly on that.

        1. 50-something votes to repeal the ACA. 0 (so far) bills that would replace it. Because actually building a statutory scheme that works, is constitutional, and doesn’t offend any of the GOP’s key constituencies is VERY DIFFICULT.

          1. You do know that about 30 of those “bills to repeal the ACA” actually passed and were signed into law by President Obama, right?

  19. At this point, short of revolution (or a negotiated divorce,) the ONLY thing preserving any semblance of liberty in gridlock — praise be its name.

  20. It would help if SCOTUS ruled that Congress has delegated too much of its Legislative authority to executive agencies, and forces legislative decision making back to Congress.

    I wonder if Trump could issue an Executive Order that any legislation that delegates legislative authority to an Executive agency must be ignored as unconstitutional.

  21. Short answer – No. Unfortunately, this is not a D or R issue, every congress for the past 100 years has handed off to someone else.

  22. “Congress does not seem to legislate much anymore.”
    Aaaaaand… isn’t this what you’ve been fighting for all this time?
    I think I’ve been reading Reason for about 12 years, now, and I can’t recall a single column that didn’t boil down to either “Congress just passed [insert legislation here], and it’s making everything worse” or “People on the [left|right] are demanding that Congress do [insert action here], and it’s a stupid idea”. If there’s one thing that could be relied upon, in these uncertain times, it’s that Reason would always counsel that gov’t should make like Atlas and just shrug.
    And, now, suddenly, you want to force government to actually _govern_ you? Reason, I think somebody hacked your password and is posting nonsense.

  23. Betteridge’s law of headlines?

  24. “Can We Make Congress Legislate Again?”

    Why would you want more legislation?

    The more Congress is gridlocked, the better the chance I get to keep what few freedoms I have left.

    1. “The more Congress is gridlocked, the better the chance I get to keep what few freedoms I have left.”

      If people would stop sending the incumbents back, you might get a Congress that would legislate that you get more freedoms.

  25. Congress doesn’t want to legislate.

    They would rather have hard fought victories be entrenched for decades than easy victories that can be replaced after the next election.

    Look at the ACA. Congress couldn’t vote to kill it, so they neutered it in a specific way to overturn the Supreme Court’s saving interpretation. Now there’s a lot more litigation arguing that either (a) Congress didn’t actually neuter it; or (b) Congress’ actions were illegal.

  26. Somebody’s already running local TV ads whining about how expensive Medicare-for-all is.

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