Envisioning a Constitutional Restoration

Envisioning a Constitutional Restoration
AP Photo/J. Scott Applewhite

Criticisms of the reach and scope of the administrative state too often miss the point. In justly blaming executive agencies for overreaching, they let Congress largely escape blame. But for decades now, Congress has chosen to delegate to federal agencies its constitutional birthright of writing laws (and in some cases even its power of the purse) for the pottage of distributing to various constituencies the spoils of executive government. Congress, as John Marini has observed, saves itself the trouble of behaving as a self-governing body, opting instead to manage the administrative state, which thus becomes, in a disturbing constitutional inversion, the real source of Congress's authority.

The result is a system of government that understands itself as drawing its legitimacy from its own capacity to act, rather than from the faithful execution of its constitutional duty to make and enforce laws in the interests of its constituents. By putting the executive first, we emphasize the value of administrative action and de-emphasize the significance of allegiance to legitimately enacted law. The intense partisanship of our time has exacerbated this tendency. Even members of Congress themselves, who might be expected to demand respect for their own institutional prerogatives, routinely place partisan policy interests over constitutional and institutional interests — deferring to a president of their own party and declining to check the power of the federal bureaucracy when it serves goals their party cares about.

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