To understand the constitutional order, it is critical to recognize that the principle of separation of powers establishes the primacy of Congress. Congress makes the laws and the rule of law is the heart of republican government. The principle of checks and balances is not intended to allow any branch to do the work that another branch has been designated to perform. Despite the inevitable overlaps, Congress makes law; the Executive administers the law, and the Court, as regards public law, interprets how laws already passed and administrative actions already taken should apply to a specific case. “It is only a slight exaggeration to say that Congress is expected to frame for the future, the president is expected to act in the present, and the courts are expected to assess the past.”
Levin sees that the most serious threat to the constitutional order is the urge of the Supreme Court—and the President—to legislate. The Court has gone beyond its authority to interpret the Constitution to declare new rights that the Constitution does not authorize, most notably the right to privacy. Furthermore, it has enabled executive agencies to issue regulations and so-called guidance documents that go so far beyond the intent and the wording of the statute as to substitute their will for the will of Congress. Presidents legislate under the guise of issuing executive orders.
Levin devotes a chapter to each of the powers. For each one, he gives a discerning account of the formative Constitutional Convention’s deliberations and contemporary distortions, while also offering modest suggestions for reform. To encourage the deliberative and compromise-inducing role Congress is meant to play, he proposes loosening the grip of the Speaker and elevating the importance of the committees that purportedly have jurisdiction over the policy area at hand. This form of decentralization is essential for enabling Congress to deliberate in an informed manner. To further increase committee power, he would do away with separate appropriations committees and give the subject matter committees authority over both authorization and appropriations. To prevent the committees from becoming mere fiefdoms of their chairs, the chairs would be elected by the committee members, not appointed on the basis of seniority. Given these more robust responsibilities, committee members would have a stronger incentive to acquire expert knowledge and seek bipartisan support for measures they favor. Thus, they might choose to devote themselves more to legislative craftsmanship and less to virtue signaling. As Madison asserted in Federalist #51, “The interest of the man must be connected to the constitutional rights of the place.”