Congress appears across these episodes less as a lawmaking body than as a body that declines to make the hard calls itself — delegating authority to agencies, deferring to courts, and responding to organized pressure rather than to argument.
The Librarian of Congress and the unlocking ban
Derek Khanna, who worked for the House Republican Study Committee in 2012, describes a caucus of about 170 conservative members for whom he helped write a report on reforming US copyright law. The report argued that copyright was being misused by special interests. About a month later, Khanna says, the Librarian of Congress banned phone unlocking in the United States, making it in practice a felony punishable by five years in prison for a consumer to unlock a phone, a result he attributes to lobbying by the big phone companies. Bob Zadek frames the episode as regulation by “a stroke of the pen,” asking whether the cell phone a person owns can be used as they wish — and answering, in the Librarian’s voice, that they cannot. Derek Khanna - What’s Stifling Innovation? (2014)
Khanna left Congress shortly after the report became controversial and the organization took it offline. He teamed with Sina Khanifar, an entrepreneur out of San Francisco whose unlocking company had been shut down, on a White House petition. The signature threshold had just been raised to 100,000 within a month, and Khanna says no one had previously hit it. The campaign gathered 114,000 signatures. Khanna’s account of Congress is one of refusal: he went back to people he knew in Congress arguing that Republicans had a chance to lead on the issue, and heard repeatedly from members and staff that he would have to be crazy to expect them to take on the big phone companies. AT&T and Verizon, he notes, are each top ten lobbying companies in Washington, D.C., while his side had no money, no organization, and no company lobbying for it. Derek Khanna - What’s Stifling Innovation? (2014)
Zadek characterizes the fight as pressure from the top by Big Cell against pressure from the bottom by Khanna and roughly 114,000 others, with Congress — Democrats and Republicans — caving to the phone companies. Khanna’s answer to the caving is partly cultural: in Washington, D.C., they are pretty far behind the times on technology, and a number of Congressmen still do not have a Twitter account. When executive regulators make decisions affecting technology that few in Washington are familiar enough with to oversee, big companies can take advantage of the information imbalance. Derek Khanna - What’s Stifling Innovation? (2014)
The breakthrough came from the executive rather than the legislature. Khanna notes that the Librarian of Congress, despite the name, is appointed by the President, and the process is an executive rulemaking one — so the petition was effectively asking the President to decide his own department had screwed up. He got a phone call from the White House the day the signatures were delivered, and was told a statement agreeing with the petition would be released within ten minutes. The White House said it would go further and support legislation; the Federal Communications Commission initiated an investigation and eventually forced the phone companies to allow unlocking; the Librarian issued his own statement. Congressman Jason Chaffetz tweeted Khanna immediately after the President and said he would introduce legislation. Derek Khanna - What’s Stifling Innovation? (2014)
Deference and constitutional debate
Keith Whittington describes a Supreme Court that often gives lip service to the idea that Congress ought to get the benefit of the doubt when the constitutionality of its acts is challenged, and says there are times when the court is fairly explicit about that presumption and times when it is skeptical that Congress is paying attention or acting within constitutional bounds. In Whittington’s view, Congress would be entitled to more deference and respect if it were actually doing a good job of paying attention to constitutional limits itself. Reviewing Judicial Review (2020)
His historical contrast is between a nineteenth-century Congress where serious constitutional debates were common and it was evident members took the job seriously, and a twentieth-century Congress much less interested in what the Constitution means. He quotes the attitude he says politicians expressed throughout the twentieth century: that the courts will clean it up if Congress gets it wrong, that it is not Congress’s job to worry about what the Constitution means, and that members should pass the legislation their constituents want and let somebody else worry about constitutional requirements. Where Congress is not even trying, Whittington argues, it is hard to justify the court being very deferential, because a deferential court will allow constitutional violations that should not be allowed. Reviewing Judicial Review (2020)
Delegation and the administrative state
Bob Levy, asked for the thirty-thousand-foot view of non-delegation, separates two questions: whether Congress can delegate authority of this kind to OSHA in the vaccine-mandate context, and whether it in fact did so. On the statutory question he points to the emergency temporary standard the Secretary of Labor may issue for six months to protect workers from a “grave danger” from exposure to substances or agents determined to be toxic or physically harmful, and argues the principle is overbroad with no limiting principle — asking whether herd immunity or natural immunity from having contracted COVID would still constitute a grave danger. A Libertarian Legal Perspective on Vaccine Mandates (2021)
On the threshold question, Levy grounds the argument in the first sentence of the Constitution after the preamble: all legislative powers are vested in Congress. The framers, he says, knew that if Congress passes an oppressive law the voters can respond by changing its membership; the problem arises when Congress lets one of the roughly 320 regulatory agencies in Washington fill in the oppressive details, because those agencies are run by unelected bureaucrats not responsive to the political process. Congress’s powers are delegated to it by the people through the Constitution, so it cannot re-delegate them without consent, and the separation of powers does not permit combining legislative, executive and judicial functions in one entity — yet most administrative agencies exercise all three. A Libertarian Legal Perspective on Vaccine Mandates (2021)
What the courts have said, in Levy’s summary, is that delegation is acceptable as long as Congress lays down an intelligible principle so agencies know how to fill in the gaps — and nobody has quite figured out what constitutes an intelligible principle. The result, he says, is that the alphabet agencies operate overtime: HHS regulating healthcare, the FCC trying to control the internet, the Consumer Financial Protection Bureau making mischief under the Dodd-Frank Act. Federal agencies now dwarf Congress in making rules controlling what Americans can do, and those rules are compiled in the Code of Federal Regulations, more than 200 bound volumes, about six times as large as the U.S. Code containing all the laws passed by Congress. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Zadek supplies the political dynamic: Congress enacts broad legislation like clean air and clean water, gets credit for it, gives the agencies carte blanche, and when people are angry they are angry at the agencies rather than at Congress. Congress then drags agency heads up to the Hill on C-SPAN and indignantly asks whether they are out of their minds, criticizing them for using the broad authority Congress gave them — passing the buck, in Zadek’s phrase, on governmental steroids. The courts are then forced to make what he calls political decisions about whether the executive branch went too far, leaving the judiciary the ultimate dominant branch, never as intended. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Levy adds that Chief Justice Roberts has focused on ensuring the institutional respectability of the court, and that to the extent the court is politicized, its respectability and the public’s willingness to abide by its dictates diminish. Roberts, along with Breyer and Clarence Thomas, has taken pains to assure everyone the court is not politicized; delegation cases force the court into a political mold it wants to avoid, because when Congress gives no guidelines at all the court has no legislation to refer to. The court, Levy says, is the last bulwark against violating constitutional requirements, and when the legislative and executive branches abdicate the authority the Constitution gives them, the court is put in a very difficult position. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Qualified immunity
A third episode, with Clark Neily, is summarized as a discussion of qualified immunity tracing its origins from the Civil Rights Act of 1871 to its judicial transformation into a shield for government actors, exploring how the “clearly established” standard prevents accountability for police misconduct, and discussing efforts in the Supreme Court and Congress to reform the doctrine. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Across episodes: what changed
The excerpts do not show a development in the treatment of Congress so much as a consistent diagnosis from different angles. Khanna, in the 2014 episode, describes a Congress that would not move until the White House and the FCC moved first, and that he says was behind the times on technology. Whittington, in 2020, describes a Congress that stopped debating constitutional limits and counts on courts to clean up its mistakes. Levy and Zadek, in 2021, describe a Congress that passes broad statutes and then criticizes the agencies for the discretion those statutes confer. The later episodes generalize what the earlier one narrates; no speaker in these excerpts revises another’s account.
What the sources do not cover
The excerpts do not state the name of any bill, the holding of any case, or the amendment on which any decision turned. They do not give the founding date of the Librarian of Congress, the text of the Copyright Act, or the outcome of the qualified immunity reform efforts mentioned in the Neily episode summary. Several excerpts break off mid-sentence or mid-thought, and nothing is supplied for the missing portions.