Power Without Responsibility: How Congress Abuses the People Through Delegation.

• Author: Hamilton, Marci A.

INTRODUCTION

The U.S. Constitution's plan for representative democracy can be summarized by this aphorism: hope for the best, but expect -- and plan for -- the worst. Framer James Wilson, a principal architect of the Constitution's scheme of representation,(1) most plainly captured this seemingly mixed message when he stated that while "[g]oodness should inspire and animate the intention [of laws properly designed and properly framed],"(2) a unicameral legislature is "impossible to restrain in its operations."(3) Good representative government is possible, he asserted, but a single legislature may be subject to "sudden and violent fits of despotism, injustice, and cruelty."(4)

Wilson believed that the sovereign people must transfer substantial power to the representative for government to be efficient and successful.(5) Although he strongly believed that popular sovereignty must be the philosophical source of representative democracy, he believed with equal conviction that the people must transfer actual lawmaking authority to others. History, he understood, teaches that this transfer of power creates the possibility -- though not the necessity -- of tyranny. Liberty requires representatives who can and will serve the people rather than oppress them.

To explain the capacities of the representative, Wilson forged a theory of the synthesis of the will and the understanding. Representatives can serve, according to Wilson, because man is not merely a self-serving will. Rather, will is always intertwined with understanding or knowlege, which can take the representative beyond simple self-service into a relationship of trust with his constituents.(6) Representatives will serve -- i.e., resist the temptation to tyrannize -- because the Constitution, and the people, will check their attempts to stray beyond the boundaries of their powers.(7) Constitutional limits on a representative's power such as a bicameral legislature, the enumeration of powers, the separation of powers, limited terms of power, and regular elections were crafted to minimize the chances for positions of power to corrupt legislators and to facilitate opportunities for representatives to act in the best interests of their constituents.

The necessity of delegating broad power to representatives stood at the foundation of Wilson's theory of democratic government. The concepts of understanding and will further shaped his specific model of representation, a model largely adopted by the Convention. Contemporary discourse on representation generally focuses on the latter two of the three notions Wilson laid down, neglecting the foundation of the Constitution's scheme of representation -- the inevitability and necessity of independent legislative responsibility.(8) Civic republicans tend to emphasize the representative's capacity for understanding and wisdom while public choice theorists emphasize the representative's self-serving will.(9) Although the debate between or about public choice theory and civic republicanism has been valuable, its dichotomous nature has impoverished discourse on authority and power. The Constitution's design to limit the power of the representative for the sake of the people has gained such ascendancy in political and legal theory that self-rule or self-government has come to be mistaken as the touchstone for our constitutional scheme.(10) Concomitantly, leadership, responsibility, and power, which were at the center of the Framers' -- especially Wilson's -- conception of representation have become quasi-taboo subjects.(11)

Although the Framers decidedly did not endorse a scheme of self-rule or direct lawmaking,(12) and instead single-mindedly attempted to craft the best possible scheme of republican democracy, self-rule has become the implicit value underlying much of the current debate over the legislative process.(13) A wide array of legal scholars has attempted to turn the representative process into one that approximates self-rule through various schemes of judicial review.(14) The literature reads as though it would deny the fundamental premise of representation -- that real power is transferred from the people to their representatives. Such denial cloaks the reality that those who govern are truly distinct from the governed.(15) During the term of representation, self-rule on matters of public import is subordinated to the goals of efficiency and efficacy. The nostalgic turn toward self-rule permeates the literature even in the face of an enormous and ever-more complex society for which comprehensive self-rule can be no option. This nostalgia flies in the face of the Framers' conscious rejection of direct lawmaking and of their conscientious attempts to craft a republican form of government on both the federal and -- through the Guarantee Clause -- the state levels.(16)

David Schoenbrod's book, Power Without Responsibility: How Congress Abuses the People Through Delegation,(17) goes a long way toward vigorously reintroducing the subject of legislative responsibility into the discourse on representation. His central theme is that representatives have a constitutional duty to make policy choices and that therefore delegation of that duty to administrative agencies is unconstitutional. His goal is to craft a feasible means by which the Supreme Court can revive its flagging nondelegation doctrine (Chapters One, Nine, and Twelve), a project for which I have already expressed support.(18) In this review, I will take a different tack and focus on the philosophical underpinnings of his more pragmatic project. As a result of misplaced emphasis, Schoenbrod appears to bring together the two sides of the cognitive dissonance that attends the current debate over representation without reconciling them. On the one hand, he seems to speak from the side of the civic republicans and condemns representatives for failing to shoulder the difficult and demanding decisionmaking responsibilities entrusted to them (pp. 10-12, 14, 20-21, 58-59, 72-75, 102-05). He accuses them of taking the self-interested route rather than the altruistic or empathetic route (pp. 20-21, 46, 102). On the other hand, much of the book is devoted to empirical examples of representatives failing to be virtuous.(19) Thus Schoenbrod sets a high standard by which to judge a representative, but then leaves the impression that this standard is not likely to be attainable. Yet, his theory of nondelegation does not deserve to be ignored but rather requires adjustment.

In a nutshell, representation rests upon a voluntary delegation of power from the people to their chosen representatives. Hope and high expectations are necessary adjuncts to such a scheme. As Wilson eloquently stated:

When I reflect, that the laws which are to be made may affect my own life, my own liberty, my own property, and the lives, liberties, properties, and prospects of others likewise, who are dearest to me, I consider the trust, which I place in those for whom I vote to be legislators, as the greatest that one man can, in the course of the business of life, repose in another.... I console myself, that the same trust, which is committed by me, is also committed by others, who are as deeply interested in its exercise as I am.(20)

Rather than tending toward an either-or stand on virtue, Schoenbrod should have focused more on the grant of power from the public to its representatives and, in particular, the implicitly optimistic chord struck by such a voluntary and broad delegation. At the same time, and to justify his argument for constitutional limits on the representatives' exercise of their delegated authority, he should have contemplated the dangers attending such a delegation of power. In the absence of such a two-pronged analysis, his high expectations for representatives seem unrealistic and even unfair, and his argument that the Court should provide incentives for responsible behavior seems futile. The constitutional system is properly understood as a synthesis of high expectations and realistic hedging. One loses the fullness of the Constitution's scheme for representation by insisting that either one is more important or necessary than the other.

Schoenbrod's central thesis is that Congress has shirked its constitutionally mandated responsibility to make the hard policy choices. To counter the imminent objection that Congress can do no more work than it is already doing, he suggests that there are a number of governing decisions that might be better made by the state and local governments. He fails, however, to explain how or why local decisionmaking would be preferable to national decisionmaking. Given his devotion to the desirability of responsible representation, one might have expected him to express reservations about the delegation of such powers at the state level and to have explored the contemporary phenomenon of direct lawmaking that displaces representative lawmaking through direct initiatives.

In Parts I and II of this review, I rely upon the views of James Wilson -- which provide both guidance and support for Schoenbrod's project -- to illuminate both of these issues: the relationship between virtue and power and the desirability and pitfalls of direct lawmaking. In Part III, I contrast Schoenbrod's proposals with the views of Jurgen Habermas, a contemporary political philosopher and the author of Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy.(21) Both Schoenbrod and Habermas respond to the development of the administrative state. The differences and similarities between their respective responses signal the contemporary fork in the road facing representative democratic theory.

1. VIRTUE AND POWER

   Using concrete examples of Congress's delegation of its decisionmaking authority to executive agencies, Schoenbrod argues that Congress has breached its constitutional obligation to make "the hard policy choices" far too often (pp. 4-9...