A Congress, If We Should Keep It

Kevin Portteus’s essay, “Congress and the Collapse of Constitutional Republicanism in America,” is nominally a meditation on congressional dysfunction. But it’s much more than that. He offers a deep reflection on the administrative state and the breakdown of our institutions under its weight.

Portteus begins by accurately noting that Congress’s favorite activity is not legislating. Instead, it follows the other two branches of the federal government in governing by decidedly extra-constitutional means, including executive orders and actions, administrative rulemaking, and judicial meddling. As he says, “Through both positive action conferring legislative power on others, and the failure to address important issues through legislation, legislative power has steadily passed from its constitutionally-designated home to other actors.” Congress has voluntarily ceded its own authority. So much for James Madison’s argument in Federalist 51 that ambition will counteract ambition.

Legally speaking, any congressional delegation of power that articulates an “intelligible principle”—that is to say, anything that is not absurd—tends to be upheld by the courts. Portteus puts it forcefully: “As it is, there isn’t much reason for Congress to exist. They don’t legislate in the constitutional sense. [And] they lack the independence and expertise to serve as legislators in the Progressive sense.”

Furthermore, the power Congress delegates is brought to bear not by natural or hereditary aristocrats, but by those who have merely “credentialed” in our “elite” institutions of higher learning. These institutions simply serve to replicate progressive modes and orders, including hubris and incompetence. “From botched disaster responses to the inability of our military and foreign policy establishments to win wars or influence people, we have the worst elites. What they excel at is navigating the system and making it work for themselves and their friends.” Portteus cites Aristotle’s regime science: “aristocracy deteriorates into oligarchy: the rule of the few, for the sake of themselves, rather than for the sake of the whole. The progressives, though they did not intend it, set the nation on this path.”