The architecture is the liberty

National Review's lead puts the matter with welcome directness: the power that agencies wield is fundamentally legislative, not executive. I need not have lived through the modern administrative state to feel the weight of that charge. The men who drafted our compact did not separate the powers of government because they were fond of complexity. They separated them because they had watched what happens when a single hand both writes the law and enforces it. The answer, historically, is not good.

The question before the courts — as I read it from the National Review account — is whether the executive branch, through its agencies, has drifted so far into the business of making binding rules that the legislative branch has been quietly dispossessed of its essential function. I would call that drift dangerous regardless of which administration presides over it. The danger is structural, not partisan.

Consider what the Framers understood about accountability. A legislator who writes a bad law must face the voters who live under it. An agency official who writes a functionally identical rule faces no such reckoning in the same direct sense. That asymmetry is not a minor imperfection; it is a slow erosion of the very mechanism by which a free people govern themselves. Power exercised without electoral accountability tends, over time, to accumulate and to harden. This I would mark as inference from principle, not from any specific record in the brief — but it is an inference I hold with some confidence.

I am told by the National Review's framing that the case styled Trump v. Slaughter presents an occasion to examine this arrangement directly. I welcome that examination, whoever the parties may be. The Republic's courts are precisely where such structural questions belong. What I would counsel against is resolving the matter on narrow procedural grounds that leave the larger constitutional problem untouched. A verdict on standing, or on this agency's particular scope, that does nothing to address the underlying transfer of legislative power would be a verdict that merely postpones the reckoning.

Civic virtue, as I have long understood it, requires that each branch of government jealously guard its own proper authority — not out of pride, but because the citizens are protected by that balance. A legislature that cheerfully delegates its hardest choices to executive agencies is not relieving itself of work; it is relieving itself of responsibility. And a citizenry that tolerates that arrangement trades the substance of self-government for its form.

My counsel, then, is this: whatever the court decides in the immediate case, the Congress ought to regard Trump v. Slaughter as a mirror. If the reflection shows a branch that has grown comfortable surrendering its first duty, the remedy lies not with the judiciary alone. It lies with elected representatives who are willing to reclaim the labor — and the accountability — that the Constitution assigned to them.