Restoring a Constitution of Compromise

John O. McGinnis & Michael B. Rappaport

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Commentators regularly decry the polarization of American politics. The vital center seems to have disappeared, only to be replaced by policies that lurch to ideological extremes. Reasoned debate has given way to constant outrage and insult. The two sides, once capable of engaging in an accommodating give and take, are barely on speaking terms.

What prompted this fracturing of our political life? Observers have put forth several theories. Some focus on the polarizing effect of social media, where partisans retreat to reinforcing echo chambers; others blame the sorting of conservatives and liberals into the Republican and Democratic parties, along with the gradual disappearance of the once moderating influence of Rockefeller Republicans and Southern Democrats. Still others point the finger at Donald Trump. One important factor, however, has gone largely undiscussed: the deformation of our federal governing structure.

Today, most public policy is not made by lawmakers in Congress, but by bureaucrats who staff administrative agencies controlled by the president. As a result, regulations do not emerge from a process that encourages compromise between members of different parties and factions within parties. Instead, the president's agency heads issue federal laws, and the people's representatives react. Since the president usually represents the middle of his party, not the middle of the nation, these rules tend to be more extreme than the legislation developed in Congress. They are also more unstable: When a president of the opposite party enters office, newly empowered agents can flip the existing rules 180 degrees, causing citizens and corporations to experience a kind of policy whiplash with each incoming administration.

We have seen this cycle play out over the course of four presidencies this century, affecting issues ranging from telecommunications to immigration to the environment. Not surprisingly, each round of partisan rulemaking angers members of the party out of power, making them more likely to pursue an even more extreme path when they retake the presidency. The result is both a more acrimonious election and a perpetual campaign, as the losing side gears up to win the all-important contest the next time around. As long as each side assumes that the victor will enjoy substantial unchecked power, the problem will persist.

THE IMPERIAL PRESIDENCY

One area of policy where the president has long enjoyed unilateral authority is in foreign affairs. Since World War II, several presidents have conducted offensive military action without congressional authorization. George H. W. Bush's invasion of Panama in 1989 is a prime example. More recently, Barack Obama turned a blind eye to Congress's role in foreign policy when he decided to enter the Paris Agreement on climate change without securing the approval of two-thirds of the Senate. Resolutions recognizing the agreement didn't even attain majority support in the House, meaning the move not only ignored the traditional mechanism of treaty ratification, but the congressional-executive agreement alternative as well. Trump followed suit when he unilaterally withdrew from the agreement. President Joe Biden has since re-entered it. Each executive acted on his own authority; none received approval from Congress.

Concerns about the abuse of presidential power in modern American politics are almost as old as the phenomenon itself. Arthur Schlesinger's 1973 classic, The Imperial Presidency, denounced the growth of presidential power beyond constitutional limits. In the decades since, his analysis has been updated to include reviews of more recent administrations and descriptions of new modes of aggrandizement.

Historically, however, concerns of executive overreach have been circumscribed to questions of foreign policy. Scholars addressing the subject have pointed to damaging consequences in the foreign-affairs arena, including lack of transparency and a tendency to embroil the United States in costly wars. While these are certainly valid concerns, viewing the problem of the imperial presidency purely in terms of foreign policy fails to capture important causes and harms of our current governing arrangements.

In terms of causes, it's difficult to grasp the reasons for the imperial presidency without an appreciation for the overall rise of the administrative state and the increased exercise of discretion by presidents and their appointees. Likewise, the harms of such relatively unconstrained political power are challenging to perceive without a broader lens. When one zooms out, it becomes clear that just as our warped governing arrangements lead us to war and other turmoil abroad, they direct us toward polarization and political disunion here at home. Rather than encouraging Americans to compromise with their fellow citizens, the contemporary mode of governance rewards ideological entrepreneurs like Bernie Sanders and Ted Cruz at the expense of dealmakers like Joe Manchin and Mitt Romney. Such a politics, stuck reeling between extremes, does not deliver durable victories to either side; instead, it succeeds only in alienating and frustrating the vast swaths of Americans in the middle.

The imperial presidency in both the foreign and domestic spheres creates a partisan prisoner's dilemma: Neither side can moderate for fear of the other side pursuing its own radical policies once it takes control. In a similar way, the possibility that one party might eliminate rules and norms that restrict extreme policies when it takes over encourages the other side to abolish those moderating structures while it remains in power. The current battle over the legislative filibuster shows this pressure at work. Trapped in this downward spiral without the potential for reform, the rational response to the other side's extreme policy may be to "go nuclear" first. Institutional decay is thus not merely a byproduct of polarization, but also its primary cause.

Recognizing the institutional roots of polarization points us toward a clear path to tempering our current age of discontent. Both Congress and the Supreme Court have the power to stop the legislative branch from further outsourcing responsibility to enact the rules that govern us to executive agencies. Doing so would force representatives and constituents alike to consider compromise more seriously, helping stem the bleeding of our body politic.

Such reforms do not require us to begin the world anew, but to return to the tried and tested institutional structure that governed America for most of its history. The original Constitution was a product of compromise, and it once induced a politics of compromise. Returning to the spirit of that Constitution should result in less extreme policies and less shrill politics.

DISTINGUISHING DELEGATION AND LEGISLATION

The imperial presidency as it exists today is the consequence of delegation: a legislative act by which Congress transfers its lawmaking power to administrative agencies. There are hundreds of administrative agencies in Washington, from the National Labor Relations Board to the Securities and Exchange Commission to the Food and Drug Administration. These agencies use the authority Congress delegated to them to issue thousands of rules every year, which are published in the tens of thousands of pages of the Federal Register. All told, agencies now write more rules that govern the public than Congress does. Modern government in the United States is thus largely administrative government.

Though delegations differ from agency to agency, they tend to be vague at best and entirely open-ended at worst. Congress's most comprehensive delegations simply tell agencies to make rules in "the public interest" without further defining that term. The Federal Communications Commission (FCC) is but one example of an agency that operates under this blank-check authority. In other cases, Congress directs agencies (the Environmental Protection Agency, for instance) to pursue objectives stated at a high level of generality — like promoting public health — without indicating how much harm is consistent with that objective. Such actions aggrandize the power of the president and amount to a dereliction of duty on the part of our federal legislature.

Even if Congress's delegations were more detailed, outsourcing governing responsibility to executive agencies would still cause problems. Delegation takes power out of the hands of the people's representatives and places it in the hands of bureaucrats and appointees. This, in turn, produces more extreme political outcomes.

Delegation leads to polarization in part because it circumvents the moderating force of the legislative process. This force is most obvious when the federal government is divided — that is, when more than one party controls the House, the Senate, and the presidency — as has been the case for roughly 30 of the last 40 years. In such a scenario, legislation will not be enacted without cross-party compromise. But even when one party controls all three lawmaking branches, legislation is still likely to be more moderate than executive action.

One reason for this is the constitutional requirement of bicameralism. As political scientists James Curry and Frances Lee have observed, "[t]he two chambers' different methods of apportionment, election, and internal procedure often frustrate bicameral agreement." Another is that some members of Congress — especially those representing swing states — have an electoral incentive to maintain a healthy distance from their party. Finally, the Senate filibuster (which makes 60 votes necessary for most legislation) represents a critical moderating element in the legislature, obliging compromise even when government is not formally divided.

Consider, for instance, the balance of power that confronts President Biden in the 117th Congress. The Senate is evenly divided, requiring Democrats to rely on the vice president's vote to wield majority power. More often than not, though, the pivotal vote on legislation is that of Senator Manchin, a moderate Democrat who must face re-election in the conservative state of West Virginia. These circumstances have forced Senate Democrats to make compromises, such as a power-sharing agreement with Republicans that requires committees to have equal numbers of members from both parties. Meanwhile, in the House of Representatives, Democrats lost seats during the last election cycle, now occupying only 222 to Republicans' 212. Since party leaders often have to cater to members that hail from the most vulnerable seats to keep their party in the majority, such narrow margins empower moderates on both sides.

In contrast to Congress, presidents tend to enact more extreme policies — and, despite his 30-plus years in the Senate, Biden is no exception. In fact, regardless of party, time in public service, or any number of other variables, the president is likely to advance more extreme ideological views than the median member of the House or Senate. This sort of ideological slant is, in a sense, part of the job — after all, a president obtains his party's nomination by winning votes from a primary electorate that is composed largely of members of his own party, and primary voters tend to be more ideologically extreme than voters in the general electorate. What's more, though candidates often attempt to "run to the middle" during general elections, they rarely lose focus on turning out their base, encouraging them to make commitments that do not reflect the majority sentiment. Taken together, these factors help explain why the last nine elected presidents appear to have followed the median views of their party more closely than the median views of the electorate.

SEPARATING SCIENCE AND POLITICS

Be that as it may, pointing out the relative extremism of policy that flows from the executive branch is unpersuasive to people who believe that administrative agencies do not make decisions based on politics. The idea that public administration can be separated from politics is a belief that goes back to the beginning of the Progressive Era. In 1887, Woodrow Wilson, then a professor of political science at Bryn Mawr College, wrote a famous paper arguing that administration could be shielded from the vicissitudes of electoral politics if it followed a scientific logic rather than ideology or interest. Through this factory model of government, Wilson insisted that experts could deliver regulations for the public good via the conveyor belt of scientific inquiry.

Several of Wilson's successors attempted to carry out his vision over the course of the 20th century, establishing dozens of agencies and, with cooperation from Congress, delegating broad discretion to the officials staffing them. Yet the promise of government by rational means failed to materialize. After all, experts do not always agree on the science, and the data are often not clear enough to dictate decisions. Despite officials' best efforts, value judgements about trade-offs remain essential to crafting public policy.

As administrative agencies are now responsible for increasing numbers of rules that govern people amid the complexities of 21st-century life, the idea that they can produce plain and simple scientific solutions derived straight from the data falls especially flat. For proof positive that politics affects administration, one need look no further than agency rules themselves. Many such rules have shifted dramatically from one administration to the next. In 2015, for instance, the Obama administration's FCC adopted strong net-neutrality rules; the Trump administration repealed them in 2017. The Obama administration imposed strict fuel-economy limits on cars; the Trump administration attempted to roll them back. The Obama administration claimed discretion under immigration law to give work permits to children who came to the United States illegally; the Trump administration not only moved to reverse this decision, but claimed additional discretion to bar immigrants from certain Muslim-majority nations from entering the United States. The Obama administration imposed detailed sexual-harassment rules on higher-education institutions under Title IX. Predictably, the Trump administration wasted no time in overturning them.

Despite this back and forth, the unilateral use of presidential power is likely to continue as the Biden administration does battle on the very same issues that divided Obama and Trump. Biden has already requested that the FCC restore the Obama-era net-neutrality rules, and he is likely to re-impose fuel-economy standards and undertake many other far-reaching executive actions on the environment. He has also re-instated the Obama administration's program for children who came to the United States in violation of immigration laws. Additionally, he has vowed to revoke the Trump administration order that gave increased due-process rights to those accused of campus sexual assault. There has even been talk among his supporters of forgiving student loans by executive order.

This administrative process of presidentially directed unilateral action has transformed the roles of each branch. In the original system, Congress initially wrote the rules, after which the president had an opportunity to veto them. Unilateralism flips this relationship. Through what professor Saikrishna Praskash has labeled "the reverse veto," the president and his agents now enact their rules into law, at which point Congress may pass legislation blocking them.

Of course, absent a two-thirds majority standing firm against him in Congress, the president can veto any legislation that seeks to overturn his policies, which grants him tremendous power to protect his rules from congressional reversal. During the last administration, eight of the 10 bills the president vetoed represented efforts by congressional majorities to reverse actions he took under broad delegations of lawmaking authority to the executive branch. Not a single one of these vetoes was overturned. Such impotence in the face of executive unilateralism illustrates how a disempowered Congress has led to policies that careen from one extreme to the other with each new administration.

WHAT THE COURTS CAN (AND CAN'T) DO

This unbalanced relationship between the White House and Congress has polarized another institution: the judiciary. Because Congress lacks effective power to prevent the executive's rules from going into effect, focus naturally shifts to the judicial branch, where courts can still enjoin those rules on statutory or constitutional grounds. This raises the stakes of judicial nominations: It motivates presidents to appoint partisans, provides senators with more reasons to oppose nominees, and incentivizes dangerous ideas like court packing. Over time, unilateralism erodes the legitimacy of the courts.

For its part, the judiciary has largely failed to enforce the Constitution's requirement that only Congress exercise legislative power. Instead, the Supreme Court has permitted Congress to delegate lawmaking authority to executive agencies, which members then take credit for or attack based on what's most politically expedient. To be sure, the Court has held that delegations of lawmaking authority must contain an "intelligible principle" to pass constitutional muster. But it has defined this test so leniently that it has not struck down a single delegation since the New Deal. Still today, the Court regularly upholds the kind of permissive delegations that cause regulations to change radically depending on who occupies the Oval Office.

The Court has also exacerbated the problem through doctrines of its own creation. In the famous Chevron case, for example, it ruled that courts should defer to agencies' interpretations of their enabling statutes so long as the statutory text is unclear. In another notable case, Auer v. Robbins, the Court expanded the Chevron decision by requiring courts to defer to agencies' interpretations of their own ambiguous regulations. In practice, this has meant that agencies from one administration to the next can change the content of regulations purely by interpretive fiat. All in all, the Court's decisions have effectively delegated the judiciary's own core power — legal interpretation — to the agencies, further fortifying the president's ability to enact extreme policy.

The Court could reverse course by attempting to distance itself from doctrines that give deference to agency interpretation and reviving those that force Congress to make more major policy decisions, such as the non-delegation doctrine. And it is showing some signs of doing so. For instance, it has tightened up Auer deference and refuses to apply Chevron to major questions of agency interpretation. But there is no reason Congress needs to wait on the judiciary's solutions.

After all, the problem didn't start with the judiciary; it began with the legislature. Judicial solutions, therefore, won't address the core problem: a lack of congressional will. And unlike the Court, which is limited to the laborious process of changing authorizing statutes one by one, Congress is well positioned to pass more sweeping, structural change that could frustrate executive overreach and stymie polarization.

One creative proposal for Congress to consider is legislation that restores the legislature's authority to make final decisions on major rules (like net neutrality or clean-air standards) that tend to divide the polity. Under the REINS Act, agencies would recommend major rules to the legislature, but those rules would not take effect unless they were enacted through an up-or-down vote by both houses and signed by the president. If it were to pass, a law like REINS would help restore the original roles of the legislature and the executive so that the White House would recommend major regulations and Congress would enact them. As a consequence, Congress would reclaim some of the broad power it has delegated to agencies over the years, regulations would have to obtain the support of legislators from the middle of the ideological spectrum to take effect, and our politics would begin to moderate and stabilize.

A POST-UNILATERAL WORLD

Others who have thought seriously about polarization have come to different conclusions about how to escape our prisoner's dilemma. One noteworthy proposition, popularized in part by New York Times columnist Ezra Klein, is that elements of our system intended to check majority rule — including the filibuster, the Electoral College, and the Senate — are the real culprits. Unless these institutions are reformed or removed from our legislative processes altogether, the argument goes, Congress will remain gridlocked, incapable of action, and on a path to even further polarization. From this perspective, constraining Washington's ability to deliver results by attacking executive agencies would only exacerbate extremism.

But this picture of our politics makes a fundamental mistake: It assumes that our system is operating the way it was intended to, and thus that today's polarized politics can only be overcome by changing that system — in this case, by making it answer more readily to the majority.

The truth, though, is that our system is not working the way it was designed to. Congress's near century-long delegation of rulemaking authority to executive agencies has warped every branch of government — crippling Congress, enlarging the executive, and shifting our most contentious political debates to the judiciary. These arrangements in turn have produced not only ineffective governance, but polarized politics.

Part of the reason unilateralism is so easy to overlook as a problem today is because it is often difficult to see how dramatically a change in incentives can alter behavior. But it is worth asking ourselves: If unilateralism were restrained, and no new rules could be enacted without congressional approval, how might our politics change?

For starters, one can imagine that without the ability to push policy through the administrative state, the president's party would be much more willing to make legislative compromises than it is today. Likewise, barring exceptional electoral circumstances, members of Congress who could not enact new laws without compromise would be more careful about engaging in polarizing behavior that might alienate the other side. Moreover, since Congress would be exclusively responsible for drafting and passing rules, constituents, interest groups, and the diffuse citizenry alike would mobilize more quickly to oust obstructionist lawmakers and criticize a "do-nothing" legislature. Influential party members might even catch on and begin to marginalize bomb throwers and elevate those more open to cooperation.

In the long run, moderate leaders skilled at speaking to the other side would likely supplant members who simply trumpet the most extreme version of their party's views. These leaders might then move to amend congressional rules and norms like the Hastert rule, which prohibits the scheduling of a vote on a bill that is not supported by most members of the majority party in the House. This re-invigorated Congress might even establish institutions that could help its members gather information and make decisions, such as a Congressional Regulatory Office patterned on the Congressional Budget Office.

Indeed, reform of this kind could have many constructive knock-on effects, almost all of which would contribute to a more energetic government and a more cohesive politics. In our current system, the inability to work with the other side and the failure to get things done are ultimately symptoms of the same problem: an absentee Congress whose legislative muscles have atrophied after decades of delegating lawmaking authority to the executive branch.

REACHING A CONSENSUS

Institutional structures that encourage unilateralism inevitably lead to an angry and divisive politics. As long as it is possible for the president to impose policies that appeal most to a vocal minority of the nation, our politics will continue to empower those who are skilled at delivering sound bites that reinforce party prejudices. These effects will inevitably resonate outside the halls of Congress. After all, in a world where members at the extremes can achieve what they want without compromise, lawmakers have less reason to listen to the majority of citizens in the middle of the political spectrum. Political discourse soon becomes more strident, and the resulting cacophony creates an atmosphere conducive to even further extremism.

Things don't have to be this way. In a world where greater legislative consensus was required to enact regulations and constitutional changes, different kinds of politicians would come to the fore: Dealmakers like Chris Coons and Richard Shelby would receive more attention, and their more rigidly ideological counterparts would receive less. Additionally, in a world where Congress was doing more of the heavy lifting of creating law, the president would become a bit less important, and our presidential elections a bit less loaded. This would decrease both the sycophancy that comes from a president's supporters investing their hopes in a single person as well as the contempt that comes from his opponents concentrating all their fears on that same person.

In sum, a political structure that requires consensus necessarily leads to a legislative agenda that appeals to a broader range of citizens. Since lawmakers would need one another's support to pass bills, the search for this agenda would encourage them to listen to one another with respect and ponder the aspirations they have in common. The result would be more compromise and less chaos. Citizens, in turn, could come to see themselves as members of the polity as a whole rather than as part of an embattled minority waiting for its turn to wield power.

Ultimately, a consensus-based politics has the capacity to improve citizens' views of one another. With less unilateralism and more legislation, we might learn to see each other less as targets in an endless battle and more as partners in a common civic enterprise.

John O. McGinnis is a law professor at Northwestern University.

Michael B. Rappaport is a law professor at the University of San Diego. A longer version of this essay will appear next year in the Ohio State Law Journal.


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