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Overloading the Federal Horse

I delivered the first version of this speech towards the end of my Senate term and modified it from time to time as I gained experience in the Executive and Judicial Branches of government. Its underlying theme is that Washington, D.C., is no longer capable of truly thoughtful, effective government because it is overwhelmed with responsibilities that the Constitution had reserved to the states—and which the states are fully capable of handling. The following variation on this defense of federalism was delivered at the Northwestern University Law School in November 1990.

It has been my lot, over the past twenty years, to serve in each of the three branches of the federal government. So rather than give you a learned summary of recent trends in administrative law, I thought I would unburden myself of some observations on the institutional gridlock that is beginning to paralyze important areas of that government.

Over the years, the basic structure of our government put in place by the Founding Fathers has served us well; so well, in fact, that, in the two hundred years of its existence, we have found it unnecessary to make any significant change in its constitutional design. This is an extraordinary record of stability, and Americans have every reason to be proud of their charter; but at times they need to be reminded that it consists of more than its first ten amendments.

As is evident from recent Supreme Court confirmation hearings, there is a tendency these days to equate the Constitution with the Bill of Rights, which, however majestic an affirmation of fundamental values, is nonetheless a constitutional afterthought. The fact is that the principal concern of the Constitution’s authors was with structure: how to frame a government that would be effective, but never threatening. The grand design that emerged from the constitutional debates proved a brilliant answer to the challenge that James Madison posed in the following terms: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The Framers met that challenge in two ways: first, by dividing the powers delegated to the new government among three separate but equal branches; and second, by reserving to the sovereign states all authority not delegated to the national government. The first, of course, embodied the doctrine of the separation of powers; the second, the principle of federalism.

It was this last element of our constitutional design that commanded the admiration of the British historian Lord Acton. In a turn-of-the-century lecture on the American Revolution, in which he catalogued what he believed to be the Constitution’s significant failings, Lord Acton nevertheless concluded that “by the development of the principle of federalism, it has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen.”

Two centuries have now elapsed since the Founding, and notwithstanding the jockeying that constantly occurs between the legislative and executive branches to establish which is the more equal, the separation of powers remains an integral part of our governmental system. On the other hand, the three branches of the federal government have, over the years, engaged in massive raids on the constitutional prerogatives of the states, to the point where, today, there is virtually no governmental responsibility that the Supreme Court will find beyond the reach of federal authority.

In the process, we have seen so great a transfer of power, authority, and initiative from state capitals to Washington, D.C., that the former have in many areas been reduced to the role of mere executors of federal policies. At the same time, we have so overloaded the federal horse that its ability to bear its expanded responsibilities is increasingly in doubt.

In January 1971, when I arrived in Washington as a newly elected senator, I came armed with a recent study of the inner workings of Congress. Its authors had concluded that the workload of the average congressional office had doubled every five years since 1935. Given the fact that, in simpler times, Congress worked at a leisurely pace and was in session for only six or seven months a year, its members could take the initial increases in stride simply by devoting more hours per day and more months per year to their work. Over time, however, the available hours and months were exhausted, and the increasing demands could be accommodated only by fundamental changes in the manner in which Congress went about its business. Inevitably, every new federal initiative will trigger a chain reaction of constituent questions and complaints, consultations with bureaucrats and special pleaders, and oversight hearings by an expanding number of committees and subcommittees—all at the expense of legislative quality.

I can certify that during my own six years in office, I witnessed both a sharp increase in the already frenetic pace of the Senate and an equally sharp decline in its ability to get very much done that could honestly be labeled “thoughtful.” By all accounts, these two trends have continued unabated. It may well be that the Senate remains “the world’s greatest deliberative body”—I can’t make that judgment because I don’t know enough about the others. But I believe it must be said that the Senate can no longer claim to be a great deliberative body, and this is no reflection on the quality of its current members. The simple fact is that their days are so fractured by competing claims on finite time that they, as well as their colleagues in the House, have too often found themselves incapable of handling many of their most fundamental obligations, such as the timely enactment of the annual appropriations required to provide for the orderly funding of the federal government’s activities.

In recent years, we have seen the spectacle of Congress racing against the clock as a handful of senators and representatives patch together multi-thousand-page, mega-billion-dollar continuing resolutions that are then rushed into law, unread by their colleagues, so that the federal machinery will not grind to a complete halt. In every instance, boondoggles have later been discovered in the fine print—legislative contraband smuggled in by one or another senator or representative who could not possibly have secured its approval through open hearings and debate.

This year’s protracted exercise has confirmed the worst we have come to expect. After heroic huffing and puffing, the congressional leadership managed to produce a deficit-reduction bill that increases overall spending by 8 to 10 percent despite the cuts in defense spending. And, yes, the boondoggles are still there. While it is too early to tell how many billions in pork are stashed away, preliminary digging by columnist James Jackson Kilpatrick has uncovered a $19-million appropriation to study the contribution of bovine flatulence to the greenhouse effect—yes, cows produce methane. What makes this example particularly intriguing is that the study had twice been eliminated from Senate legislation, and had not been included in any House bill. Yet the $19-million study reappeared, presumably by spontaneous generation, in the final bill that both houses rubber-stamped into law in the final hours of the 101st Congress.

While the pace and pressures of life on Capitol Hill appear to have destroyed its capacity for deliberative lawmaking, committee and subcommittee chairmen are nonetheless able to find the time to micromanage the Executive Branch’s conduct of a host of federal programs and, in the case of the Senate, to convert confirmation hearings into political inquisitions.

But I am being unfair. Congress’s erratic performance is to a large degree the result of a workload that has grown too great to permit either reflection or attention to detail, so it is not surprising that its members will turn instead to government by political reflex and political theater. What is clear from the experience of the past few years is that fundamental changes will have to be made before Congress can once again provide the thoughtful service the nation needs.

The problems besetting the Executive Branch are of a different order. The overloading of a legislative body will ultimately lead to paralysis, because each of its members is required, in theory if not always in practice, to reach an informed judgment on each item of business to come before it for a vote. Yet there is a limit to the number of issues an individual can master at any one time. By contrast, in the Executive Branch, new office space can be built and new staffs hired to handle new or expanded responsibilities. At a certain point, however, the proliferation of programs will outstrip the ability of any president to provide the bureaus and agencies under his titular control with meaningful direction.

Today, the sheer size of the federal establishment defies coherent oversight. To compound a president’s problems, Congress has entrusted the management of a host of executive responsibilities to bureaus and agencies that together form a de facto fourth branch of government. These are staffed by essentially irremovable civil servants who exercise enormous influence over just about every facet of American life. And as a practical matter, they operate largely beyond the reach of even the most determined president.

Even in the case of cabinet departments headed by his own appointees, a president is apt to face almost insurmountable problems in getting his programs implemented. White House policy directives have a way of disappearing into bureaucratic black holes, and the cabinet secretaries themselves are often so caught up in detail that they lose sight of some of their administration’s most pressing goals.

A president, of course, is still free to exercise energetic leadership during periods of international crisis. The fact remains, however, that, like Congress, the Executive Branch is experiencing its own institutional gridlock. No matter how large his margin of victory, the most a new president can expect in four or even eight years in office is to nibble away at the edges of his agenda.

The third branch has not fared so badly, even though litigation in federal courts has become one of the great growth industries of the past twenty-five years. Thanks to the proliferation of federal laws and regulations, the continuing discovery of hitherto-unsuspected constitutional rights, and the disposition of Americans to have a court decide almost any dispute, the number of appeals filed in federal courts has skyrocketed from 3,900 in 1962 to 37,000 in 1987. [By 2009, they had risen to 57,740.] The ninefold increase has had its inevitable impact on both the workload and the quality of the work of federal appellate judges, whose numbers have only doubled over the same period.

Nevertheless—and there are those who would consider this a very mixed blessing—the judiciary appears to have suffered neither gridlock nor paralysis. In a sense, the federal judiciary has proven a prime beneficiary of the expansion of federal authority. Thanks to the exploding body of law federal judges are called upon to decipher and apply, they are exercising more power today than could ever have been imagined two hundred years ago; and some are exercising it in remarkably creative ways. Take, for example, the federal district judge who, among other things, ordered a school district in Kansas City, Missouri, to build indoor Olympic-sized swimming pools, operate a twenty-five-acre farm, and install greenhouses and amphitheaters; the judge then directed the district to increase its tax rates to help pay for it all.

Whatever complaints one may lay at the feet of federal courts these days, judicial paralysis is certainly not one of them. On the contrary, the focus of the current debate is over judicial activism. One observation I would make on this prickly subject is that to the degree that federal judges treat the Constitution as no more than a repository of values to be applied without reference to original meaning, to that degree do they undercut the legitimacy of judicial review in the constitutional arena. Instead of interpreting laws, they dispense them.

In Marbury v. Madison, John Marshall asserted the Supreme Court’s right to invalidate an act of Congress by affirming that the Constitution was “superior, paramount law,” and that “it is emphatically the province and duty of the judicial department to say what the law is.” Thus, when the Court concludes that the Constitution and an act of Congress are in conflict, the latter must yield. This seems to me a rather straightforward proposition: The Constitution is law, and, like any other law, it has a meaning that judges are trained to ascertain and apply.

I find it hard, therefore, to reconcile John Marshall’s approach with that suggested by Justice Brennan in a 1985 address at Georgetown University. On that occasion he observed that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” He stated that “The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.” This statement, it seems to me, begs the question of a Supreme Court justice’s competence to speak for the community at large.

Justice Brennan also spoke of the Bill of Rights as “a sparkling vision of the supremacy of the human dignity of every individual,” and stated that it is the function of federal courts to bring that vision to full fruition in the light of “the evolution of our concepts of human dignity.” Once again, I am troubled by his implicit assumptions. On the matter of capital punishment, for example, Justice Brennan acknowledged that his own views were shared by neither a majority of the Court nor a majority of his fellow countrymen. Nonetheless, he asserted that “On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived.” Thus Justice Brennan seems to be saying that he found the authority for his votes on this issue—and, one wonders, on how many others as well—not in the explicit language of the Constitution, nor in community sentiment, but in his own perception of what is required by an enlightened understanding of human dignity. It seems to me that this is the thinking not so much of a jurist as it is of a philosopher king.

Unfortunately, it is the unstated premise of much of the debate over recent Supreme Court nominees that Supreme Court justices ought to serve as philosopher kings. I submit that if the view of a judge as lawmaker is allowed to take root, we will have politicized the selection process and jeopardized the Court’s independence. I fear, from the questions asked at confirmation hearings, that that process is well advanced, as a number of senators seem far more interested in how the nominee might vote on politically sensitive issues than in how he would approach the task of determining what vote the Constitution requires.

This is about as far as I can appropriately go in dealing with the judiciary, so let me return to the problems I see facing the Legislative and Executive Branches. Here, I must confess, I am profoundly worried. I believe that at the national level, we are rapidly losing our capacity for effective government: government in which politically difficult decisions can still be made, problems thought through to ultimate solutions, and long-term commitments undertaken in the confidence that they will be honored; government in which each branch will respect the prerogatives of the others and understand the limits of its own.

As the problems afflicting both Congress and the Executive are essentially structural, they are not prone to easy solution. There are no doubt many causes of the paralysis I see creeping over Washington, but I feel by far the most significant of these has been the virtual abandonment of the principle of federalism. Accordingly, I believe the surest road to true reform is to rediscover and reapply that principle, and, in that way, to reduce the scope of federal responsibilities to manageable size.

I do not suggest that it is possible or even desirable to replicate the division between state and federal authority that once obtained in this country, and that until relatively recently was thought to be constitutionally mandated. Too much water has gone over the dam; too many fundamental changes have occurred in American life. What I do urge is that we reaffirm the wisdom of the original constitutional design, in which only those functions that are deemed essential to the effective conduct of truly national business are assigned to the federal government, while all others are reserved as the exclusive province of the states; and that we then determine, in the light of today’s conditions, which level of government should be doing what.

There will always be an argument as to where the line is to be drawn. But I think that where it is drawn is less important than the principle that a line must be drawn that leaves no question as to the outer limits of federal authority. Of course, having done this, all parties would have to take a blood oath to abide by the new dispensation.

This means that if the more enlightened folk who gravitate to Washington do not like the way the citizens of Illinois, or Hawaii, or Arkansas choose to manage their own affairs, they will have to suppress the impulse to impose enlightenment on them. But perhaps, in the fullness of time, Washington might learn to set aside the arrogance that assumes that the citizens of the several states cannot be trusted to govern themselves.

I recognize that my modest proposal would require an uncommon substitution of philosophy for politics; but ours, after all, is a system uniquely based on a philosophical conception of the nature of man and of the limits of human institutions. Those limits are now being tested; and perhaps it is not altogether romantic to hope that necessity, if not philosophy, will lead us to rediscover the robust federalism that in times past provided this nation with such extraordinary strength, and flexibility, and freedom.

As political philosophers, the delegates to the Constitutional Convention understood that they had accomplished something profoundly important. As realists, they also understood that the protection of the new Constitution would be a never-ending task. As Benjamin Franklin left Independence Hall on the last day of the convention, a woman asked him: “Dr. Franklin, what kind of government have you given us?” He answered, “A republic, madam, if you can keep it.” That is the challenge that each generation of Americans has had to face. That challenge will soon be yours.

Good luck.

When I first raised these concerns, the federal government was about half as large as it is today, as measured by real dollars spent. The size of the Executive Branch has long since made a mockery of the notion of congressional oversight. There are simply too many people making too many decisions and spending too many dollars for 535 overworked members of Congress to possibly keep track of what they are doing. One can only hope that Washington’s breathtaking responses to the 2008-09 financial meltdown—the frenetic enactment of zillion-dollar bailout and stimulus bills, the takeover of car manufacturers and insurance companies, the doubling of the national debt—will shock the public into demanding reductions in both the size and the cost of the federal establishment. The tea-party phenomenon suggests that this may in fact be happening.