In response to: First Among Equals: Reconsidering Congressional Power in James Burnham's Congress and the American Tradition
John Samples has revisited an old controversy concerning the fundamental purpose and function of the legislative branch of the American government. In doing so, he has engaged the arguments of an older generation of conservative defenders of Congress, those who had been troubled by the waning influence of that institution. Samples looked primarily to James Burnham, whose book, Congress and the American Tradition, published in 1959, raised the question whether Congress as an institution could long survive in the age of executive dominance. Burnham was not sanguine about the prospects of its survival. He was persuaded “that the political death of Congress would mean plebiscitary despotism for the United States in place of constitutional government, and thus the end of political liberty.” Burnham, like Willmoore Kendall, believed that “to keep their political liberty, Americans must keep and cherish their Congress”. Burnham traced the decline of the legislative body to the rise of the bureaucratic State. He insisted that “Congress has let major policy decisions go by default to the unchecked will of the executive and the bureaucracy”.
In order to retain its status of first among equals, Burnham insisted that “Congress must find a way to concentrate on essentials. If it is to continue to be a partner and peer within the central government, then its principal energies must go to deciding major issues of policy, not to the critique of details.” He assumed that “the assemblies, by their very nature, cannot be bureaucratized in the modern mode. Among the giant institutions into which society is currently for the most part arranged, the assemblies are undoubtedly anomalous, a breach in the pattern; and if all modern institutions have got to conform to the managerial-bureaucratic norms, then the assemblies are on an irreversible way out.” Burnham foresaw the growth of the bureaucratic state, but he did not foresee a role for the legislative branch within that state. Was Burnham right in his assumption that legislative assemblies could not be bureaucratized?
More than fifty years later, John Samples was not persuaded that Burnham was right in his diagnosis of Congress. He insists that Congress has reasserted its power in many areas and has proved to be more than a match in terms of exercising that power in its defense against encroachment by the other branches of government. He does not deny that the “New Deal and its echoes did set Congress on a declining path toward obsolescence, and in 1959, the administrative/welfare state seemed triumphant. Had the fifteen years after World War II continued for the next fifty, Burnham’s bold prediction might well have been confirmed, including the demise of Congress. But the administrative-welfare state lost, and never quite regained, public confidence, and if those athwart history did not quite stop its progress, they also did not wholly fall under its wheels. The question remains whether, when historians look back at the beginning of the post-New Deal era, they will note with surprise the revival of the United States Congress.” It is hard to deny that Congress, when united, has ample power in terms of defending itself against the other branches. However, is Samples right in his assumption that not Congress but “the administrative-welfare state lost” the confidence of the American public? Or, is it the case that Congress has become an integral part of the ‘administrative-welfare state’?
I suggest that Burnham was only partly right in his insistence that Congress holds the key to the preservation of political liberty in America. He assumed that “legislative supremacy” was the fundamental condition of the maintenance of republican government. However, the American Founders did not believe that Congress as an institution would or could be the primary defender of liberty. Nor did they depend upon the Presidency, or the Supreme Court, exclusively, to fulfill that role. The American Founders established the Constitution, and the separation of powers, as the surest defender of freedom. This was to be done by subordinating the power of all the branches to their constitutional purpose. It was the result of an abandonment of their constitutional role that enabled both of the political branches of government to participate in the establishment and consolidation of the modern administrative state. It seems that Burnham was wrong in his assumption that assemblies cannot be “bureaucratized in the modern mode”. It is only constitutional assemblies that cannot be legitimately bureaucratized; precisely because deliberation and general lawmaking remain its fundamental constitutional purpose. In denying Burnham’s claim that Congress would cease to be a major player in modern government, Samples has shown that the revival of Congress indicated that it had been possible for Congress to give up its lawmaking power without relinquishing its authority over those administrative bodies to which it had delegated that power. In other words, it had become possible for Congress to establish itself as a major player in the politics of the bureaucratic state.
Burnham’s book was written before Congress reorganized itself to accommodate its transformation from primarily a legislative body to an administrative oversight body. Throughout much of the twentieth century, presidents of both political parties had fought to aggrandize the administrative component of government, pushing Congress to expand the executive branch. Congress, representative of local interests and still tied to state power, was reluctant to do so. It remained a defender of decentralized administration because it insisted upon maintaining its deliberative and lawmaking function. In 1965, Samuel Huntington noted that Congress could not continue to function as a national institution because, politically, it represented parochial and state interests. As a result, he insisted that the Presidency had come to be the dominant force in national politics and therefore, “today’s aggressive spirit is clearly the executive branch”. The loss of power by Congress, Huntington suggested, “can be measured by the extent to which congressional assertion coincides with congressional obstruction. This paradox has been at the root of the problem of Congress since the early days of the New Deal. Vis-a-vis the Executive, Congress is an autonomous, legislative body. But apparently Congress can defend its autonomy only by refusing to legislate, and it can legislate only by surrendering its autonomy. . . Congress can assert its power or it can pass laws; but it cannot do both”. Apparently, Huntington was convinced that administrative centralization was necessary, and perhaps, inevitable.
There was another option for the legislative branch. Congress could adapt itself to the requirements of a centralized administrative state. But, it could do so only if it gave up its power to refuse to legislate on behalf of the administrative state. It was necessary to relinquish its primary constitutional function of deliberation and lawmaking in the national interest, and use its legislative power in the service of the administrative state. It did so by the wholesale delegation of power to newly created administrative and regulatory bodies, whose ostensible authority was dependent upon technical, or rational, knowledge. Congress could retain its autonomy, and political authority, by establishing itself as the overseer of the executive branch. In the process, individual committees and members were empowered to oversee the various departments and agencies of the executive branch. They would soon become major players in the administrative policymaking process. Subsequently, Congress would become, primarily, an administrative oversight body, the ‘keystone of the Washington establishment’.
The Constitution, its separation of powers, and the politics of federalism, had inhibited Washington from achieving such centralization. The Progressive intellectuals had advanced the theoretical doctrine of the administrative state, and the New Deal had attempted to expand and legitimize the administrative state. But, the administrative state was not institutionalized in any permanent way within the framework of American politics until Congress reorganized itself as the keystone of the bureaucratic state. When that occurred, from 1965-1975, the constitutional separation of powers and the federal system was fundamentally altered. At the time, many in Congress objected to the transformation. Representative Gillis Long expressed the typical complaint. He noted, “We (Congress) were turning ours from an institution that was supposed to be a broad policy-making institution with respect to the problems of the country and its relationship to the world, into merely a city council that overlooks the running of the store every day.” Such objections were ineffectual and short-lived. After a few years of experience, members of Congress came to prefer administration and regulation to deliberation and legislation. Representative Jamie Whitten summed up the view of many in Congress in an unusually clear way. He noted: “the smartest thing we ever did was to throw the weight of the federal government behind local problems.”
After that transformation, the characteristic activity of the federal government and the legislature had become the regulation or the administration of the details of the social, political, and economic life of the nation. Such a development could only strengthen the organized interests and their ties to the legislature, often at the expense of presidential control of administration. Even sympathetic observers of congressional power did not fail to notice the change. James Sundquist noted then: “as members become managers of professional staffs, the chambers disintegrate as ‘deliberative bodies’ in the traditional sense of legislators engaged in direct interchange of views leading to a group decision… With each passing year, the House and Senate appear less as collective institutions and more as collections of institutions– individual member-staff groups organized as offices and subcommittees.”
After the centralization of administration, the operation and interests of the executive and the legislative branches were fundamentally transformed. The role of the parties was diminished, because bureaucratic patronage would become more important than party patronage. In addition, the function of the judiciary was transformed as well. In the administrative state, the bureaucracy has no Constitutional authority, but it is given enormous power by the political branches. Consequently, the courts have been required to enter the policy-making arena, as the final arbiters in the adjudication of cases arising in the administrative process. As a result, they have become fundamental players in the political and policy making process. In legitimizing policies of the agencies, the unelected courts have protected the political branches from responsibility for policies that are derived almost exclusively from the administrative process. Even when they are deeply unpopular, the electorate has no access to the centers of power in the administrative state. Congress controls the administrative details of politics through the bureaucracy, and the judiciary reigns supreme in the realm of political principles. The Supreme Court determines what passes for the moral will of society by construing what passes for the contemporary meaning of the Constitution.
Insofar as Congress is still tempted to make general laws on behalf of a perceived public good, it does so primarily on behalf of the expansion of the administrative state. For example, Congress passed what appeared to be a general law concerning health care reform, the Obama administration’s Patient Protection and Affordable Care Act. But, it is clear that this not a law in the constitutional sense. It makes sense only within the context of an administrative state. The Health Reform Bill was more than 2,500 pages long. But, it was not a general law; rather, it established the legal requirements necessary to provide the administrative apparatus with the legal right and power to formulate the rules which would govern health care nationwide. This extension of governmental power is compatible with the administrative State, but it cannot be understood to be within the letter or spirit of constitutional government.
Congress did survive the twentieth century. But, it would be difficult to say it still performs its Constitutional purpose. Congress, as an institution, is no longer the defender of limited government, nor is it the center of a dynamic federal system in which the states participated in maintaining the political conditions of decentralized administration. The states too have accommodated themselves to a centralized government and administration. The administrative state, with the blessing of Congress, grew dramatically in the last third of the twentieth century, and it continues to expand. Despite its expansion, under both parties, it has not attained legitimacy within the American constitutional order. The Constitution, itself, remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until the administrative state becomes legitimized, or constitutionalism delegitimized, an ongoing debate within the parties, and the electorate, concerning the desirability of expansion, limitation, or diminution, of the size and scope of the federal government is almost inevitable.