November 11, 2015


This year’s Convention has a series of great panels about Congress, its original meaning, and its current power and influence. Increasing polarization, gridlock, and President Obama’s expansion of executive prerogative, all point to the importance of rethinking the role of Congress.

On my Friday morning panel, “The Living Congress: Adaptation or Decline,” we will focus on Congress’ power in relationship to the President and its influence over the modern administrative state. In this context, I will explain my understanding of the “collective Congress.” The Constitution vests legislative power in Congress as a whole—individual lawmakers can exercise legislative power only by forming majorities (or sometimes supermajorities) to pass laws.

Collective lawmaking is a fundamental aspect of the structure of separation of powers. It reinforces that Congress can exercise (with a few specific exceptions) only legislative power. Individual representatives and senators have no separate power and are limited from controlling the execution of the laws.

I will explain how open-ended delegations to administrative agencies have eroded the collective Congress. The demise of any workable non-delegation doctrine means that significant discretion is given to agencies. Members of Congress can then influence and control that discretion through various formal and informal means. Delegation can be a way not only of increasing the power of the executive branch, but also of increasing the power of individual lawmakers.

This erodes constitutional accountability in a number of ways, including that it allows agencies (functionally) to make law and congressmen (functionally) to administer the laws. Through delegation, both branches can make rules and interpret them—turning the separation of powers on its head.

My comments will draw on my recent article, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. (forthcoming 2015). I look forward, as always, to further discussions at the Convention.

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