Long Live the Legislature

By Charles C. W. Cooke

Thursday, July 25, 2024

 

As a rule, I am unimpressed by the complaint that, despite its being the Current Year, we are “still” debating this or that political question. Indeed, when I hear such a thing said, I am usually tempted to switch off. There is nothing special about us, or the age in which we live, and to propose that any issue of public import ought by now to have been extracted from the reservoir of legitimate inquiries is, invariably, to suggest otherwise. Nevertheless, I will confess that, while I do not expect that any one of my opinions ought to be accepted without question, my level of surprise at their repudiation does vary by the topic. And never, ever am I more surprised than when I encounter someone who is dismissive toward legislatures.

 

Legislatures, it seems to me, are at the beating heart of the American system. Contrary to popular belief, the American Revolution was fought not over taxes per se but over whether those taxes were to be levied by a king or a local assembly. After the resolution of that revolution, the men who had fought it established a system in which — pace all that Wilsonian “coequal” nonsense — the legislative branch stood head and shoulders above the rest. That system made its way into every state, and it came to be celebrated widely, from The Federalist Papers through to Schoolhouse Rock.

 

And now — in the Current Year! — it is being forgotten, drip by drip.

 

There is, of course, a pre-political reason for Americans to cherish their legislatures as the sole producers of their legislation. That reason? It is the law. The federal constitution holds that “all legislative Powers herein granted shall be vested in a Congress of the United States,” and similar language is found in the constitutions of all 50 states. That word — “all” — isn’t a suggestion or a preference or an ideal; it’s the way our system of government works. Legislative power is not some unmoored, immortal source of authority that can be claimed by squatters in such case as its rightful owners decline to use it; it is linked inextricably and irrevocably to the legislatures in which it has been vested. Outside of those confines, there are no powers to discharge.

 

When, in 2011, Barack Obama stopped telling the public that he was not allowed to rewrite immigration law on his own and began saying instead that “if Congress won’t act, I will,” he was claiming an authority that simply did not exist. It was a usurpation, yes. But, worse than that, it was an invention in which he was not authorized to engage. Before they may take office, our politicians are expected to take an oath, and that oath is expected to be the end of the matter. The Constitution says what it says, and if they dislike it, they can work to change it or they can shut up.

 

Still, while “It is because it is” serves as a solid rejoinder against unfaithful politicians, it does not work as an intellectual defense. And so, putting my disbelief to one side, I wish to make a case that I wish did not have to be made: in favor of legislatures, and against executive fiat.

 

Put as simply as possible, legislatures are useful institutions because they require the assent of more than one person before they can properly exercise power. In a vast, continental republic such as ours, this fracturing of authority has the benefit of facilitating the representation of people who come from different places and who have different views, but, even if it did not, the mere existence of different kinds of people within the fold would still make the legislature the most desirable way to make law.

 

We are prone in America to extrapolating the problem with all-too-powerful individuals to its breaking point: Fulfilling Burke’s characterization of a people who “augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze,” we worry about the arrival of a dictator on the German model or of a king who speaks French. This, to be sure, is an admirable and wise habit, and yet, in most cases, it is also unnecessary, for one does not need the risk of absolute tyranny to appreciate the benefits of a parliament that contains multitudes. Even in the most boring contexts within our day-to-day politics, that case stands on its own.

 

The first of those benefits is obvious: that having a collection of flawed people making law — rather than just one flawed person making law — spreads the risks that are posed by the dark side of human nature. An individual who has been empowered to make decisions on his own is liable to fall prey to all the sins in the book: haste, caprice, vengefulness, corruption, fanaticism. A collection of individuals, by contrast, is likely to contain enough members to keep those instincts in check. This is not, of course, because those other members are flawless — or because groups of people will ineluctably resist the temptation to become a mob — but because the motivations of each legislator are likely to differ in small but important ways and therefore to offset one another beneficially. Explaining the importance of separating the executive, legislative, and judicial powers within the federal government, James Madison predicted that ambition would be “made to counteract ambition.” Happily, this approach also works internally. In a functioning legislature, the mere presence of multiple legislators serves to set sin against sin. Caprice in one direction is met by caprice in another; vengefulness against one faction is met by vengefulness against another; fanaticism to the right is met by fanaticism to the left; haste in pursuit of one party’s aims is met by intransigence in service of another’s. Contrary to the hopes of the Year Zero utopians who inspired the French Revolution, the Chinese “Great Leap Forward,” and the Soviet Union, human nature is no different today from what it was in the time of Demosthenes. Try as one might, one can neither eradicate it nor find leaders who are able to transcend it. One can, however, dilute it to insignificance. Legislatures aid enormously in that endeavor.

 

The second obvious benefit is related to the first: that having an intellectually, politically, and geographically diverse collection of representatives improves the deliberative process that leads to successful legislation. During a recent debate on the administrative state — a debate in which I made the case that far too much American law was being written by the bureaucracy — I was asked by a law professor whether I thought that it was better to have “experts” determining the details of legislation or elected officials “such as Marjorie Taylor Greene” doing so. Leaving aside that this is not, in fact, a question over which I have any control — the decision to vest the legislative power in the legislature was made by the Framers when they wrote Article I, and it remains operative — my answer is clearly the latter, and it would remain so were we to add any number of other disliked legislators to the list. The purpose of the U.S. Congress is to represent all the people of the United States — some of whom, yes, have chosen foolish people as their emissaries. It is not up to me — or to the nation’s law professors — to decide that those people’s voices must be replaced. Federal law, by its nature, binds everybody in the country. In consequence, it ought to be argued out, too, by everybody in the country.

 

In part, this is to ensure legitimacy; when a new law is proposed, it is useful to let the dissenters have their say, to force compromise where compromise is necessary, and to record which constituencies were ultimately on board and which were not. And, in part, this is to guarantee that each and every idea that might become law is put to a critical mass of unalike people. We hear an enormous amount about “diversity” these days, but in most circumstances the diversity in question has to do with superficial questions such as the color of one’s skin or one’s sexual orientation. True diversity — of interests, notions, judgments, and so forth — is far more valuable than that. Given the nature of the United States, one is far more likely to find that true diversity in the national legislature than in the bureaucratic class in D.C. — which, insofar as it has any sway over the president, tends to be homogeneous, narrow-minded, and dull. For a good illustration of the difference between the two, consider President Biden’s decision to transfer hundreds of billions of dollars of student-loan debt to taxpayers — a decision that would never have been made (and, indeed, was not made) in Congress but was wildly popular among the staff of the federal department that was asked to implement it. Often, the theft of power from Congress is sold in populist terms. In practice, it is anything but.

 

The third obvious benefit is stability. One of the most common complaints about the American legislative system is that it is “inefficient” or “slow” or “unresponsive.” But, properly understood, those are all positive things, not problems to be solved. It is extremely rare that the transition from one president to another coincides with a generalized desire to make sweeping changes to the U.S. Code, and yet, when we permit the executive branch to invent powers that it has not been granted — or to “reinterpret” statutes that have never before been considered ambiguous — we create the outcome that John Adams warned against and become a government of men and not laws. By design, presidents come and go. The law, however, is supposed to remain steadfast until it is altered by the branch that has been tasked with its maintenance and modification. When there is a groundswell in favor of change, that change will occur. But it oughtn’t to be easy.

 

Why not? Well, for a start, the rule of law requires that the public comprehend the statutes under which it lives. This is much easier to achieve when Congress sporadically alters the lawbooks than when a department that answers to the president elects to rewrite regulations by fiat. For better or for worse, the changes that were ushered in by Obamacare or by the 2017 tax reform or by the federal response to Covid-19 were widely and loudly debated, so that a person of reasonable intelligence and application could have been expected to follow them. This is not the case with presidential edicts, which are designed to limit input from public figures, usually revolve around the tendentious recasting of esoteric terms in existing law, and tend to fly under the radar of the press as a result. Our constitutional order relies on respect for the law, and respect for the law relies on comprehension.

 

And then there are the problems that flow from the instability that extra-legislative lawmaking inevitably creates. At present, American politics is described as “angry,” “divisive,” and even “eschatological,” and voters are chided for their insistence that the next election in the cycle will be “the most important” of their lifetimes. But what do we expect them to think when so many of the crucial policy matters that ought to be decided over time by the Congress have been shifted into the purview of the White House? The coming presidential election is expected to decide whether the border will be secured, whether men will be allowed to play in women’s sports, whether the executive branch can spend up to half a trillion dollars on student-debt “relief,” whether firearms (and firearm parts) that have been presumptively legal for decades will remain so, and more. If, as we insist, we really would like to “lower the temperature” of our national life, we would do well to return these questions to the rolling legislative process instead of to an every-four-year Super Bowl in which compromise is impossible.

 

We have the technology — if we can keep it.