The lessons of Hobby Lobby: Congress is AWOL

The courts and the executive now make policy. That isn't good enough.

(Image credit: (iStock))

Notably absent from the debate over the Supreme Court's Hobby Lobby decision is Congress, supposedly the centerpiece of our democratic project. Any legislative solution to address the issue of contraception coverage — whether it's revising the 1993 Religious Freedom Restoration Act, or passing a fix to ensure women at religiously minded corporations are covered — is an impossibility given Congress' level of dysfunction.

Hobby Lobby has made it abundantly clear that Congress has basically relinquished its policymaking obligations to the executive and the judiciary. And that spells trouble for American democracy.

For a country that is almost obnoxiously proud of its founding documents, Americans sure seem to despise the actual government created by those documents. A new poll released by Gallup shows continuing erosion in Americans' trust in their government: Confidence in the presidency is at 29 percent, the Supreme Court at 30 percent, and Congress at 7 percent.

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That latter number would be highly alarming if it weren't for the fact that it's only slightly worse than it was a couple years ago. Americans have been living with a useless Congress for so long that we've become used to it. But while we've managed to muddle along, there will come a time when this dynamic simply won't work anymore.

Any country trying to set up a legal system is immediately confronted with the problem of how to make sure the people in power don't just ignore the laws and institute a tyranny. American constitutional design is supposed to deal with this by separating powers between the legislative, executive, and judiciary. In "Federalist #51," James Madison took a special concern with limiting the power of the legislature, which was an exceptional problem because "in republican government, the legislative authority necessarily predominates":

The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. ["The Federalist Papers"]

It's fair to say that Congress' current state of abject helplessness can be attributed to both deliberate design and the way the institution has evolved. But guarding against tyranny becomes a less noble endeavor when the legislature ceases to function.

As Matt Yglesias argues, a comatose legislature doesn't mean that the overall power of the government is limited. Instead, power just flows elsewhere, like the Supreme Court:

What courts are not supposed to do is deliberately or accidentally become the forum for huge new departures in the realm of policymaking. And yet in the United States that is exactly what they do — not so much because of the bogeyman of "judicial activism" but because of the collapse of the legislative process...The judicial branch, through its power of statutory interpretation, is constantly changing the lived-experience of American public policy even if the legislative text stays constant. [Vox]

And not just the Supreme Court, the executive branch also. Case in point: After the Hobby Lobby decision, the White House announced it was going to consider executive action to mitigate the decision's effect on access to contraception.

This puts the lie to traditional conservative arguments that a prostrate Congress is no big deal, and that keeping Congress weak means preserving American liberty. "We have enough laws," as Sen. Kelly Ayotte (R-N.H.) has argued. But there will always be demands for change: New situations to deal with, old policies that need to be updated, or failing ones that need to be be repealed.

Fundamentally, the struggle over politics is an inextricable part of democracy, and preserving Congress in amber merely means that the field of politics is shifted to the courts and executive branch regulations — areas where ordinary citizens have little, if any, influence.

So what can be done? Jonathan Bernstein argues persuasively that Republicans are a large part of the problem, so beating them in elections, or countergerrymandering Democratic states to reduce their advantage in the House, are both solid options.

However, I don't buy his contention that the U.S. system is otherwise without problems. I think our antiquated constitutional design is undemocratic and responsible for the incomprehensible mess that is American policy. Thus, reformers can start pushing for other changes to make congressional action easier, like fully abolishing the filibuster and the "blue slip" rule. Or for something more radical, we might stipulate that any two combinations of Senate, House, and president can pass bills instead of requiring all three.

Americans have gotten so cynical about their government that things like constitutional amendments are barely discussed anymore. But there may come a time when we can't just scrape by with a judiciary and an executive. There's no replacement for laws passed by the duly elected representatives of the people.

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