Restoring Faith in Congress

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

 Tara Leigh Grove

         It often seems as though Congress is the most beleaguered government institution. Complaints of congressional gridlock and polarization—and talk of a “do nothing Congress”—abound. So it is refreshing to see scholarship that highlights the central role of Congress in our constitutional scheme. Neil Siegel’s The Collective-Action Constitution gives pride of place to Congress. Siegel argues that one of the Constitution’s original and primary purposes was to solve collective-action problems among the several states, and that Congress is the institution with both the constitutional authority and the democratic legitimacy to carry out this job.

         Siegel’s terrific work takes us painstakingly through the Constitution, showing how many of its provisions can be understood as designed to solve collective-action problems. Siegel forcefully argues that a collective-action theory explains not only Article I powers such as commerce, taxing, and spending, but also less-often-discussed provisions such as those governing interstate compacts, extradition, and the admission of new states to the union.

Siegel’s work is impressive not only in the breadth of its coverage but also in its careful attention to the limitations of the theory. First, Siegel asserts (p. 310-11, 385-86) that a collective-action account cannot explain most individual rights protections of the Constitution, nor even considerable parts of Articles II and III. Second, he acknowledges that this account does not necessarily lead to a particular resolution of controversial issues. Siegel tells us (p. 5) that “[a]lmost all multistate collective-action problems in the history of the U.S. federal system” have been a variant that he calls “cost-benefit collective-action problems”—that is, “situations in which some states would regard themselves as better off if collective action succeeded but other states would regard themselves as worse off.” This type of collective-action problem, Siegel argues, does not admit of straightforward solutions.

One example of the cost-benefit conundrum is the national debate over abortion. Siegel notes (p. 203) that “antiabortion states might impose significant externalities on states that seek to protect abortion” by placing pressure on the health care resources of those states. At the same time, however, he argues (p. 204) that “pro-choice states [that allow broad access] might impose significant negative externalities on states that seek to ban abortion” by “thwart[ing]” the state bans. Siegel contends (p. 204) that there is “no value-neutral” resolution of this “moral question.” But under a collective-action account of the Constitution, it is clear which institution has the power to resolve the issue: Congress, “where all states, and all interests within states, are represented.” Accordingly, Siegel insists that “[i]n constitutional litigation, a court should defer to whatever rational cost-benefit judgment Congress makes.”

         Much of Siegel’s book envisions a constitutional regime in which Congress is at the forefront of constitutional debate and decision. He writes (p. 310): “Article I of the Constitution comes first for a reason. Congress is the only branch that possesses legislative power to solve collective-action problems for the states and, relative to the other branches, it possesses the most democratic legitimacy to use that power.”

So it feels sobering when one reaches Chapter 11, where Siegel himself acknowledges the challenges of congressional gridlock and partisan polarization. Many of the hurdles to enacting federal legislation are of course part of the constitutional design: the bicameralism and presentment requirements of Article I, Section 7. But these constitutional procedures, when supplemented by subconstitutional rules such as the filibuster, as well as partisan bickering, make it difficult for Congress to enact or revise legislation to solve collective-action (or, frankly, any other) problems. It seems we are back to the beleaguered Congress, after all.

         What’s the solution? Although Siegel recognizes (p. 472) that a “gridlocked Congress increases the relative power of other branches,” he is not enthusiastic about relying on the rest of the federal government. Siegel observes (p. 476-78) that, at least in theory, federal courts could “update” statutes so as to solve collective action problems. But he contends (p. 477) that “statutory updating is in significant tension with the ideal and expectation that … the judicial role is to interpret statutory language insofar as its meaning is discernible, not to craft such language. That is because courts possess far less democratic legitimacy than Congress.” Nor does Siegel wish to give the executive branch considerable authority to solve collective-action problems. Siegel writes (p. 459-60): “Because states are not as well represented in the executive branch as in Congress, turning the president into the third legislative chamber undermines the democratic legitimacy of federal decisions regarding whether collective action is needed.”

It seems, therefore, that the solution must lie in improving the performance of Congress. Siegel’s book recognizes but does not focus on this issue; indeed, he notes (p. 480) that his “collective-action account … cannot solve” the challenges of gridlock and polarization. One can envision solutions, such as reforms to congressional procedure and the electoral process. Siegel briefly mentions, for example, eliminating the Senate filibuster for legislation.

Perhaps one important change (albeit one with a more long-term impact) is to modify the way that we talk about Congress. It is easy to complain when Congress does not do enough. But we may thereby overlook what Congress does do. As Siegel observes (p. 480), “Congress passes major legislation today”—on issues as diverse as health insurance, infrastructure, bankruptcy, taxation, as well as responses to the 2008 financial crisis and the COVID-19 pandemic. It may be time to start talking more about the “do something Congress.”

Moreover, those of us who are legal scholars and teachers can offer a vision of what it means to be a good legislator. We spend much of our time envisioning the ideal judge—and critiquing real-world judges who inevitably fall short. We can begin to construct a similar vision of legislators, even as we recognize that real-world politicians will also fall short of an ideal. That is, as scholars (including Siegel in other work as well as Vicki Jackson and myself) have observed, we need a normative account of our expectations of our elected leaders.

I view Siegel’s Collective-Action Constitution as part of a longer-term project on restoring faith in Congress. It is important to consider the job that the Constitution assigns to Congress, which (Siegel forcefully argues) includes solving collective-action problems. But another key part of this project is to figure out how to help ensure that Congress can perform whatever role the Constitution assigns it. Rather than complain about a “do nothing Congress,” let us envision what a “do-many-things Congress” might look like. 

Tara Leigh Grove is Vinson & Elkins Chair in Law, University of Texas School of Law. You can reach her by e-mail at <tgrove@law.utexas.edu>.