Aziz Z. Huq and Tom Ginsburg (both University of Chicago Law School) have posted Reviving the Impetuous Vortex: The Contemporary Puzzle of Congressional Power (Boston University Law Review, forthcoming) on SSRN. Here is the abstract:
This essay tests Justice Gorsuch’s critique of Congress as disempowered and incapable. First, Justice Gorsuch’s diagnosis of congressional lassitude correctly isolates a defect in American democratic institutions: Legislation—its production through public deliberation and disagreement, and then its constraining force upon private and public actors once it’s in force—is central to the project of sustained representative democracy of the kind that dominates the modern era. Second, the Gorsuch remedy (a revived nondelegation doctrine) fails to address the most likely sources of congressional dysfunction. These causes are both internal—arising from how Congress organizes its own operations—and external—a function of incentive structure generated by electoral competition. Most of these causal chains lie beyond the remedial reach of the Court, and to the extent the Justices are relevant, they have made matters worse. Third, a congressional reform project needs a definition of what counts as success and also a sense of how internal and external reforms are to be sequenced or combined. Neither of these analytic tasks is straightforward. Finally, and in conclusion, we note a possibility that the problem that Justice Gorsuch diagnoses is likely resistant to institutional reform—in the sense that its provenance is to be found in the underlying distribution of voters’ preferences. The fault, that is, may not be in the constitutional constellation, but ourselves.
Highly Recommended!
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