Law professors talk a lot about the legitimacy of the Supreme Court but they should guard their own legitimacy as well.
Nebraska Senator Ben Sasse’s opening remarks last week at Brett Kavanaugh’s confirmation hearing focused attention on Congress delegating its own legislative power to the executive branch. The argument he developed regarding how promiscuous congressional delegation of its own power weakens the Constitution’s separation-of-powers system was important in itself – and is magnified by the visibility of the venue (even if it didn’t quite explain why judicial confirmation hearings became so politicized).
Sasse did not rest his separation-of-power concerns on mere formalism. He explained how congressional delegation creates hinders democratic accountability, and discussed the electoral motivation spurring Congress to delegate.
The most rousing part of Sasse’s remarks circled around his vigorous defense of Congress as the central political branch of the national government. Unlike the image of Congress that many commentators draw today in which they lament the loss of the ostensible collegiality of bygone eras (meaning the days when Democrats habitually steamrolled Republicans in Congress), Sasse painted a picture of Congress as the branch of government that should be partisan, loud, and rambunctious.
Amen to that.
More substantively, though, Sasse explained how moving the locus of policymaking from Congress to executive branch agencies sets policymaking at one more remove from voters. Given traditional liberal/Progressive complaints about the ostensibly undemocratic nature of the American separation-of-power system, one would think the century-long process by which national policy makers become increasingly immunized from democratic accountability would be a concern on the left as well as the right. Yet concerns with the rise of the administrative state, and the corresponding decrease in democratic accountability, meets only with silence on the left.
To be sure, in principle, moving of policy-making from the legislative branch to the executive branch in the U.S. need not represent a lessening in democratic accountability. Voters elect the President as well as Congress. Herein lies the significance of Sasse referring to the bureaucracy as the “fourth branch” of government. The rise of the merit system for the executive branch bureaucracy, as well as the development of independent commissions and agencies in the executive branch, has reified the antidemocratic character of the administrative state.
It’s useful to pause at this point, however, before moving on. After all, the move to the merit system and independent commissions historically sought to reduce cronyism and corruption in a patronage-based executive branch. Nonetheless, with more than a century’s worth of experience with a bureaucracy increasingly immunized from electoral accountability, it is doubtless time to revisit the Progressive promise of “neutral competence” in administration. At least since the public choice revolution, policymakers and scholars can no longer with justification treat administrators as black boxes that neutrally implement legislation.
After over a century of experience with independent executive boards and commissions, and almost a century of experience with the merit system in the national executive branch, it is appropriate to raise the large question, as Sasse did in his remarks, whether the country has moved too far in immunizing policy making from the vagaries of the democratic process. To be sure, we can concede there are costs to holding the entire executive branch electorally accountable. But so too are there real costs in immunizing the vast part of the executive branch from that accountability. As Sasse asked, but did not answer, are there ways for Congress to answer its need for administrative expertise without losing electoral accountability?
An irony in Sasse’s remarks, however, was his explanation that electoral concerns of legislators are what actually motivate Congress to cede power to the bureaucracy. The theory is well known and is called “blame shifting.” The idea holds that legislators seek to minimize exposure to voter disapproval by delegating policy decisions to the executive branch, whom legislators may then blame for adverse outcomes of the various policies. (The theory also implies legislators cede policy-making authority to the judiciary as well.)
While possible, explanations more parsimonious than blame shifting more plausibly account for Congress delegating its own power away from itself. There is no need to look beyond opportunity costs for legislators in time and staff to see incentives for legislators to delegate policy-making authority to other institutions: Each minute spent on writing specific legislation is a minute that could otherwise be spent on vote-getting constituency services, leadership-promoting institutional service, or writing and promoting other bills. Plus, bill writing is a public good among legislators in plural legislatures. This means individual legislators do not capture the full value of writing specific legislation, so the separate actions of individual legislators cannot be expected, without greater incentives, to provide the amount of legislative attention optimal for the institution.
Further, blame shifting places informational expectations on voters that almost none would meet. To wit, when in the voting booth, most voters will not discriminate between government action resulting from a legislative enactment and government action resulting from an administrative regulation that, in turn, resulted from a legislative enactment. And if a voter does have that knowledge, then the voter would also have knowledge that Congress delegated that power to the agency, and, contrary to the requirements of blame shifting, could therefore hold Congress accountable for its actions.
Still, a more parsimonious theory explaining why legislators give their power away provides only a minor repair to Sasse’s argument regarding why Congress delegates. It does not imperil his central argument that congressional delegation of its power to executive branch agencies, most of which are also effectively unaccountable to the elected president, has worked a significant shift in the Constitution’s separation-of-power system, and so has materially damaged the U.S. democratic system.