The legislative process that the Framers carefully set up has gone awry.
The legislative process that the Framers carefully set up has gone awry.
‘I ’m just a bill . . . and I’m sitting here on Capitol Hill.”
So goes the Schoolhouse Rock song, wherein a bill in Congress explains its journey from idea to written proposal to law. Millions of Americans learned the basics of the legislative process from the “I’m Just a Bill” lyrics. The song’s author, Dave Frishberg, passed away on Wednesday at the age of 88.
Unfortunately, the legislative process the song describes does not live on. Not really. Laws consist of rules that bind human action on pain of punishment, and Congress still does make such rules. Those rules, however, constitute a small fraction of the regulations under which we live.
For a long time, Congress has delegated much of its power to legislate to other parts of the national government. Bureaucrats, for instance, have taken up the lion’s share of regulatory action. The number of rules they promulgate dwarf those statutes that make it through Congress to the president’s desk. Moreover, the president and executive-branch officials have received extensive regulatory power, exercised under executive orders.
Congress delegated this power in the laws it has passed — statutes whose text articulated benevolent goals, broadly, sometimes vaguely, stated. These statutes declared, for example, the desirability of clean air, safe working conditions, and better health care. Yet, instead of then articulating how to achieve these goals, Congress left such determinations to the executive and executive-branch agencies. Themselves defining what clean air, safe working conditions, and better health care meant in practice, bureaucrats and executive officers then wrote the regulations that had the force of law in implementing those definitions.
One example of this process at work came in the controversy over mandated insurance coverage for contraception in the 2010 Affordable Care Act (a.k.a. Obamacare). The text passed by Congress required only that businesses of a certain size provide coverage for preventative health care for women employees. The law included no definition of what such health care involved. Instead, it delegated such decisions to the Department of Health and Human Services. DHS made the ultimate call, and that call had the force of law.
Why would Congress give up so much of its essential power, especially when passing a law of the ACA’s breadth and import? It did so mostly for two reasons. First, handing off these decisions allowed Congress to take credit for the general goal of the law while evading blame for the tough choices that always accompany their implementation. Second, the massive growth that the national government underwent in the 20th century and into the 21st made it hard for Congress to keep up with the needed regulation for ever-multiplying and expanding programs emerging from the ACA and many other laws.
In passing off its legislative power, Congress has lost much — as have the national government and the American people. The Constitution’s Framers understood that laws aren’t necessarily good laws. Laws can be unjust in their goals; they can be poorly constructed in achieving even good purposes; and they can be too many, thus burdening rather than protecting the American people.
In setting up the Constitution’s legislative process, the Framers sought to mitigate each of these potential problems. They designed the process to facilitate one quality in particular: deliberation. Deliberation involves reasoned discussion to create and refine bad or mediocre bills into good laws.
Under the Constitution, three entities — the House, the Senate, and the president — each have a say. In giving that say, the three entities, and the members composing them, come at potential laws from different perspectives, which they bring to bear on a bill. Members of the House and Senate are elected to different terms of office to represent the country’s varied regions and states. They form deliberative committees in Congress based on areas of expertise, such as energy, education, and taxes. The president represents the country as a whole, with the particular responsibility of enforcing laws once passed.
Because the legislative process entails these distinct perspectives, there is less change for unjust bias in the bill. Might the legislation as originally written favor one part of the country, one class, one race, or one religion? If so, the required acquiescence of House, Senate, and president will be harder to obtain. Might the legislation have unintended consequences or not spell out the most effective means to accomplishing its good purposes? The same factors contribute to cleaning up such issues.
The process also limits the number of laws that can be passed. This forces the national government to limit its extent and to focus its efforts. Far from making government ineffective, the process concentrates legislation on the principles found in the Declaration of Independence, that governments exist to protect the natural rights of those under its jurisdiction.
All of these benefits were present in our constitutional system, as described in Frishberg’s song. All of these benefits Congress has ceded in delegating its legislative power to the bureaucracy and the president.
“It’s not easy to become a law, is it?” the song concludes. That used to be true, constitutionally speaking. America would be better off — juster, smarter, and more faithful to the Constitution — if it became true again.