“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex,” Madison warned of the leviathan-like potential of unchecked legislative power in Federalist No. 48 [1]. Yet, modern Americans are caught up in the fear of partisan divides and wanting their values to win the day, without remorse for power ripped out of balance to shape a world in their image. When congressional action grinds to a halt, their inaction opens a void where the executive and judiciary branches acquire power to increasingly make politics a zero-sum game, at the expense of Madison’s vision.
Fearing the dangers of an overly powerful legislative branch, the framers of the U.S. Constitution included precautions within the American Experiment. Creating a bicameral legislature composed initially through different electoral modes, the Founders envisioned a legislature that would rely on coalition building and deliberation. Constitutional checks allow lasting change to be implemented piece by piece as all representatives collaborate for mutual gain toward the common good.
“The process of coalition building can then moderate their most extreme demands and make them more likely to appeal to the common interest of the larger society than to their distinct interest and, therefore, also seek common ground and to forge it where it did not exist before,” [2]. Deliberation is what is meant by coalition building. Deliberation is not a gentle and sophisticated exchange of views and policy opinions but is the “pushing through disagreement toward negotiated outcomes,” [3]. Negotiation is the heartbeat of a healthy America, and an indication of well-balanced power rather than degenerating into an absolute sovereign.
However, over the decades, and particularly in historically divisive moments of our American heritage, our legislature has defaulted on its constitutional obligations. It has lost sight of its constitutionally provided talent to produce tolerant legislation that supports the common good. In today’s politics, the common good is not so common and even less likely to be agreed upon in our polarized legislature.
In times of polarization and profound disagreement, the branches of the federal government have reapportioned power to keep the legislative process moving. Presidential administrations began to increasingly rely upon executive orders to fulfill promises to the American people. Congressional inaction left an open invitation to judicial legislation and policymaking. While the executive and judicial branches seized unused power, the legislative branch abdicated more of its responsibility, thereby creating the administrative state—a hegemon or leviathan in embryo, comprising nearly 400 executive agencies that issue thousands of binding legal regulations [4]. Those regulations and the immensity of the administrative state should be concerning because that power is accumulated under the direction of the executive.
Madison wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” [5]. As the legislature defers to other branches through inaction, we see just how much our politics have become a zero-sum game. Executive power becomes the most powerful body, and the body that the American polity can control the most. Policymaking and legislative powers are increasingly accumulating in the executive’s hands because Americans demand action that the legislature is no longer capable of generating.
Progressively, American legislation is becoming a zero-sum game. We’ve grown accustomed to the unilateral legislative capacity of the Executive branch. Even the legislature, when controlled by the same political party that decorates the Oval Office, kowtows to the Presidential mandates. In contrast, when the Legislature is misaligned in terms of partisan affiliation with the Presidency, then gridlock occurs. The Legislature was never intended to be controlled, contrary to national media coverage every election cycle. Founders never thought that the prevailing American concern every four years would be which party captured the majority of the House and Senate. They expected narrow majorities to win the day when creating legislation, as coalition-building would break down extreme policy propositions into more tolerable ones through deliberation.
Instead, we have the recurring American innovation of the government shutdown. The Constitutional reminder that Congress must pass at least one piece of legislation, a spending bill. The power of the purse is held exclusively by the Legislative branch. They divert budgets to even the expansive conglomerate of the administrative state, yet, when Congress cannot agree upon the one piece of legislation that, through deliberation, they must find an answer to each year. Failing to answer, a government shutdown begins until the Legislature begrudgingly finds a tolerable balance.
Balancing the federal budget is troubling, but balancing the federal power through the Constitution was even more troublesome in the numerous debates of the Constitutional Convention. The concern was that the Legislature would become a tyrannical power dictating every national action. Today, we are primarily concerned with the all-or-nothing outcomes of overactive Presidential Administrations or progressive legislating Courts. Legislation from these bodies will always be all or nothing, as court decisions declare a winner and a loser, and the Executive branch will reflect the plurality of opinions found in a Bicameral legislature. Winner-take-all legislative approaches deprive the American people of laws that allow for mutual gain. We should be concerned when legislation stalls into government shutdowns; yet, far more concerning is the systemic problem of zero-sum legislative approaches that shut down our sacred constitutional balance. More importantly, we should be hopeful as our generation chooses to build bridges, compromise, and respect constitutional order rather than become a leviathan incarnate.
