Congress’s Human Temptations

I had thought that my last intervention would be my last on this topic. However, because today was the first sunny day in years on which I did not have to either drop off or pick up children for school or activities, I decided to go to work by bike. On the ride home, I let my mind wander, and it wandered to Professor Vermeule’s main point in his argument against Mr. Wallach, to wit, “If they trust Congress to make laws, why don’t they trust it to make delegating laws?” From there it wandered to the way I, as a professor, am often tempted to make use make use of my research assistants, and I thought I saw an answer to the question.

As a professor, part of my job is to publish scholarly articles. Georgetown University trusts me to do this sufficiently to allow me the academic freedom to pursue the truth wherever it resides, no matter how unpopular that truth may be. I do my best to fulfill this obligation, and I flatter myself to think that my scholarly output is of high enough quality to justify what the university pays me.

I also hire research assistants to help me in this endeavor. They help me assemble the factual basis of my contentions and perform literature searches to make sure that I do not overlook relevant contributions by other scholars. As Georgetown law students, my research assistants are often very bright people with good analytical ability who write well. Despite this, they do not have the experience or insight into my thinking to write my articles for me.

I think I am a fairly responsible person. However, I am also an human being. Writing publishable articles is time-consuming and often frustrating work. I confess that there are times when I think to myself that it would be easier to simply let my research assistants write my articles for me. I never indulge in this dereliction of duty, but I do feel the temptation. I suspect that others do as well, and some with less resistance to the idea than me.

In my experience, professors are often intellectually brilliant men and women, but they are frequently also people with some unusual psychological proclivities. I can easily understand how universities could trust such people enough to allow them to write whatever they wanted, and yet not trust them enough to make unchecked decisions about how much work to delegate to their research assistants.

It seems to me that something analogous could be at play in the political realm. Assume for a moment that those elected to Congress are generally responsive to their constituents’ best interests–something that I regard as a counterfactual. Assume further that like professors, they are particularly good at something–in this case, crafting legislation that is acceptable to these constituents. But like professors, they are also human beings who are engaged in time-consuming and often extremely frustrating work. And as human beings, they must be sorely tempted to pass some of their workload off to others who do not have the experience or insight to craft legislation with this characteristic. Further, like professors, politicians frequently have some distinctly unusual psychological proclivities. If Hayek is correct in Chapter 10 of The Road to Serfdom, in order to get elected, they must be individuals who are not overly restrained by commitment to principle. And so, assuming the counterfactual to be correct, as Mr. Wallach appears to want to do, there would seem to be a perfectly good reason to trust the members of Congress with the power to write legislation themselves, but not with the power to delegate such power to others.

Is this an adequate answer to Professor Vermeule’s challenging question? I leave that to my fellow discussants to decide.

Also from this issue

Lead Essay

  • Farewell to the Administrative State? by Philip Wallach

    Philip Wallach describes rising skepticism about the administrative state in our representative government. But what can be done about it? Populists promise to return the government to the people, and yet effective government in the modern world to a high degree requires technical expertise. Libertarians have a telling diagnosis of the problem, says Wallach, but few workable solutions. If Congress is to regain control of the sprawling administrative state, it will have to demonstrate that it is willing and able to govern instead.

Response Essays

  • The Administrative State’s Irredeemable Devotion to Central Power by Clyde Wayne Crews

    Clyde Wayne Crews finds much to agree with in Philip Wallach’s diagnosis of administrative sprawl. But then he asks: Why not rein it in? Other countries have done so, and we have even taken some important and bipartisan steps in that direction before. The bureaucratic pretense of expertise has never been so clearly exposed as it is today, and we should take the opportunity to improve the regulatory environment before incipient technologies, like autonomous cars and commercial drone transport, are caught in the regulatory web.

  • What Legitimacy Crisis? by Adrian Vermeule

    Adrian Vermeule openly doubts that the administrative state faces a legitimacy crisis. He observes that Congress itself created the administrative state, and that it remains firmly in control of its creature. Moreover, the public appears fairly content with the administrative state that we have, and certainly shows no inclination to scrap the whole thing. Both these observations should count, he suggests, in any consideration of the administrative state’s legitimacy. In short, there is no crisis here, and no radical solutions are warranted.

  • It’s Better Not to Play the Game at All by John Hasnas

    John Hasnas does not think that the administrative state can be reformed. But it can be outpaced. This, he says, offers hope for libertarians, whereas politics does not. The administrative state is inherently slow to adjust to new social developments, and liberty will always exist just a few steps ahead of it.

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