Joseph W Postell

Congress is in limbo. It is no longer the bipartisan, collaborative, participatory institution it was during previous eras, and neither is it the top-down, “czar”-driven institution that it was when political parties were at the height of their power. The public’s frustration with Congress during the Cannon years created the opening for the Revolt of 1910 that gave power over to the committees. Subsequently, the public’s frustration with that system led to the reforms of the 1970s that both decentralized power to subcommittees and centralized power in party leaders. Where we go from here will depend on how well we understand and implement the lessons of history, which makes the examination of Congress’s evolution indispensable.

In Chevron v. NRDC, the Supreme Court announced a new rule of statutory interpretation in construing regulatory laws: In any case where an act of Congress does not resolve a legal issue, the federal courts must defer to an agency's reasonable interpretation of the statute. In Auer v. Robbins, the Court applied the same rule to cases where an agency interprets one of its own rules. In each case, the Court effectively transferred lawmaking authority from the Article I legislature or Article III courts to Article II officials. Chevron and Auer also conflict with the Administrative Procedure Act of 1946. Members of the Court have questioned Chevron's validity and reasonableness, but Congress should itself eliminate Chevron and Auer deference.

The administrative state is an assault on constitutional principles--government by consent, the separation of powers, and the rights of individuals--that liberals and conservatives hold dear. The key to reform is that it be grounded in a proper understanding of these principles, not in the hope of immediate short-term gain or narrow self-interest. If we begin from constitutional principles and can communicate those principles and their relevance to the public in a clear manner, the reforms envisioned in this report are not too far from our grasp. It is high time that Americans work together to forge an alternative to the administrative state so that we preserve our constitutional principles for future generations.

Pending legislation in the Senate to grant the District of Columbia a representative in Congress would undermine the District's unique constitutional status as a city under the responsibility of the U.S. Congress. The "District of Columbia House Voting Rights Act of 2009" (S. 160) would grant the District a voting representative in Congress. Such legislation would undermine the Founders' vision of the "federal town" as a unique enclave that would receive substantial benefits from its appointment as the seat of government. Because the seat of government would be located in the federal city, the Founders anticipated that the interests of residents in the District would be protected and advanced by the Congress as a whole--a scenario that has proven to be substantially true throughout American history.