Notice & Comment

D.C. Circuit Review – Reviewed: “Why Congress Matters: The Collective Congress in the Structural Constitution”

Scholarship takes a hit when the flurry that is the end of the second semester arrives. It takes time to write exams; host review sessions; meet with nervous students; and sometimes even reach out to potential employers about students who are still looking for summer slots. Hence, when April comes around, I’ve learned that for a couple of weeks, it is hard to wear my “scholar” hat. Triage is real.

The flurry, however, is coming to an end. Exams are written; review sessions are done; my Civil Procedure class is taking the exam this very minute; and — knock on wood — students know what they will be doing this summer. So now seems like a great time to return to scholarship, especially because this has been a quiet week in the D.C. Circuit. How quiet? We have no opinions.*

Turning to scholarship then, here’s a new article that no doubt will attract some attention: Why Congress Matters: The Collective Congress in the Structural Constitution. This article should be a buzz-magnet for two reasons.

First, it is interesting! The article explains “why Congress matters” and argues that it — and, according to the article, Congress most assuredly is an “it” — ought to play a larger role in today’s world: “Congress currently stands in the shadow of the administrative state. Yet administrative ascendance is not part of the inexorable march of reason, and presidential control of administration should not replace congressional control of legislation.” A lot of folks have a lot of thoughts about administrative law. Often those thoughts are about agencies. This article argues we should expand our vision. A renewed focus on Congress’s role may be a useful springboard for more thinking.

Second, the author is Neomi Rao, one of the most significant players in today’s regulatory world. Professor Rao, after all, is currently Administrator Rao — the Senate-confirmed head of the White House Office of Information and Regulatory Affairs. In other words, this article may be more than just academically interesting. Rao has been thinking about this topic for some time and this article builds on what she said before.

With that background in mind, here is the abstract:

Congress currently operates in the shadow of the administrative state. This Article provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep roots in political theory, the Framers created a representative and collective legislature that would provide a legitimate mechanism for bringing together the nation’s diverse interests to most effectively pursue the common good. To fully realize the benefits of collective lawmaking, the Constitution insists on the double exclusivity of the legislative power: only Congress can exercise legislative power, and Congress possesses only legislative power. The Constitution ties the ambitions of representatives and senators to Congress as an institution by prohibiting members of Congress from exercising the executive or judicial powers. This structure supports the members’ fiduciary responsibilities to the people, minimizes corruption, and reinforces the independence and integrity of the lawmaking power.

Understanding the principles of a collective Congress provides a framework for analyzing a range of separation of powers questions, particularly those arising from the delegation of legislative power to administrative agencies. Quite simply, presidential control of administration cannot replace congressional control of legislation. Congress remains relevant in our complex modern society because it provides a unique form of accountability for ascertaining and pursuing the public good, preserving the rule of law, and protecting individual liberty. The collective Congress provides a powerful conceptual framework for understanding the scope of the Constitution’s “legislative power” and how Congress may exercise it. The administrative state blurs the line between the executive and legislative powers. The collective Congress sharpens that line and helps explain why Congress still matters in our system of government.

Now, perhaps you are asking what this has to do with the D.C. Circuit. True, this article doesn’t contain much discussion of the D.C. Circuit — I checked! But there is some.

Most prominently, Why Congress Matters addresses the divergence between today’s Supreme Court and the D.C. Circuit of the 1970s about “congressional standing.” I wasn’t aware of the history, but the article explains that the D.C. Circuit during that era was quite amenable to suits by individual members of Congress. The article also quotes then-Judge Scalia who while on the D.C. Circuit began to push back, writing that “no officers of the United States, of whatever Branch, exercise their governmental powers as personal prerogatives in which they have a judicially cognizable private interest.” Scalia continued: “If this were not so, we would be besieged with lawsuits, not only on the part of congressional plaintiffs seeking full recognition of their powers by their congressional colleagues and by the Executive Branch, but also on the part of executive officers, asking us rather than the President to resolve conflicts in their authorities, or even challenging presidential resolution.” For what it is worth, this is how Scalia began his concurrence in that 1984 case:

The chancellor’s foot has never been considered a particularly satisfactory unit of measure, even for matters of relatively small public consequence. It is regrettable to see it applied, now for the fourth time in a panel opinion of this court, as a substitute for the doctrine of standing in marking off the separation of powers. I write separately because, while agreeing that we should abstain from deciding this dispute, I view that abstention to be the result not of our discretion but of constitutional command.

Clever. To be sure, no doubt there are counterarguments; I may have to poke around to see what Scalia’s colleagues said in response. But it is worthwhile to read authors who make you think. That was true for Scalia, and it is true for Rao.

And on that note, it is time for me to start writing scholarship of my own — hopefully, I have a thought or two worth writing down. Sure, it may only be April, but for law professors, summer has begun.

(Note, I discussed the scholarship of Rachel Barkow a few years ago. When the D.C. Circuit has weeks without opinions, I may start highlighting other scholars.)

* Major opinions will come soon enough.

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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