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Tuesday, October 15, 2019

Legislative Capacity and the Law

Andrew Coan has recently written an excellent book (the subject of a Symposium on Balkinization) explaining how the limited capacity of the Supreme Court to decide cases filters into the substantive doctrine that the Court generates. This got me to thinking--could you not say the same about Congress?

In other words, the size of Congress has changed hardly at all since 1913. (Except that the Senate has four more members). The demands upon Congress and the population of the nation, though, have grown by leaps and bounds since 1913. How has Congress reacted? Partly through a large increase in its staff and support (for instance, the CBO). But mainly by creating federal agencies and delegating power to them.

Undoing some aspects of the administrative state, therefore, might require increasing the size of Congress. Conducting the necessary oversight to legislate more precisely or do the work that agencies currently do may not be possible without more members too share the work. And since the Senate cannot be made larger without admitting more states, the only remedy involves increasing the size of the House of Representatives. Perhaps this would be a better balance between legislative and administrative authority--I don't know. What I do know from my research is that Congress was not thinking about when they fixed the number of House members at 435 in 1929. Four years before the New Deal.

Posted by Gerard Magliocca on October 15, 2019 at 09:42 PM | Permalink


I don't really see any advantages of this. I don't think more representatives means better deliberation, the way legislative assemblies work means that they don't really generate better ideas or better laws because they are more people. Yes, the committees could each be responsible for a smaller area and thus do better job in theory, but I am also skeptical whether this will be so in practice. I doubt Congress has any interest in doing a better job, what is in it for them?

Posted by: Jr | Oct 16, 2019 4:21:42 PM

Increasing the number of representatives would also decrease the disproportionate sway of low-population states in the Electoral College.

Posted by: Greg Sergienko | Oct 16, 2019 12:21:00 PM

Or let the states do the bulk of the regulating. I think that's what the framers had in mind.

Posted by: anon | Oct 16, 2019 10:01:15 AM

How about we just let the state representatives vote on legislation too? That would add hundreds of reps without having to raise taxes to pay their salaries?

Posted by: Tenth Amendsmith | Oct 16, 2019 7:59:39 AM

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