Congress and the Collapse of Constitutional Republicanism in America

There’s nothing Congress likes better than not legislating. The legislative process in theory still takes place in Congress, but the results, which have the name and form of law, are in reality not law, properly understood. Legislative policy is still made in America, but it overwhelmingly takes forms other than laws enacted by Congress according to the process set forth in Article I of the Constitution. By conferring legislative power on others and leaving vital public issues unaddressed through congressional action, members of the legislature are effectively failing to carry out their constitutionally designated duties.

The importance of this change in the American political system cannot be overstated. Delegation—Congress’s abdication of its core legislative function—is key to understanding both the modern Congress and the crisis of constitutional government in America. Congress’s regular use of delegation has led to two seismic consequences: institutional failure on a massive scale and, more fundamentally, a transformation in the very character of the American regime.

Congress and the Legislative Power

The Constitution’s first substantive provision in Article I states that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The Legislative Vesting Clause reflects the belief that the legislative power is distinct from other powers. A specific institution, Congress, is entrusted with a specific power: the legislative power, or the power to make laws.

So what is a law? In Federalist 62, James Madison defines it as “a rule of action,” while Alexander Hamilton similarly holds in Federalist 75 that laws are prescribed “rules for the regulation of society.” A law, properly understood, authoritatively communicates to its subject what he must do and must not do. By implication, law also communicates to its subject what he may do, but is not required to do.