Both the United States and the European Union must strengthen their respective legislative branches to end bureaucratic overreach and reflect the political will of their citizenry. The post below will outline some premises based on which this could—and should—happen.

Introduction

In both the United States (US) and the European Union (EU), bureaucratic overreach has become increasingly prominent, underscoring the necessity of reforming representation and bolstering their respective legislative branches. Despite their distinct political structures, both entities grapple with the influence of unelected bodies—such as U.S. federal agencies and the European Commission—that often shape policies impacting millions. Strengthening the United States Congress (Congress) and the European Parliament (EP) can ensure that governance more accurately reflects the political will of their citizens, reinforcing the foundational principles of representative democracy.

Background

To establish some measure for the current effectiveness of Congress as a legislature, a fair comparison is the original vision of the legislature as expressed by James Madison, the Father of the Constitution. In his essay Federalist 51, Madison writes “In republican government, the legislative authority necessarily predominates.” Madison here means that the legislature controls the law-making authority, the predominant power of the government. Furthermore, in Federalist 52, Madison highlights the legislative branch’s importance as a direct representative of the people via strong relationships, reflected interests, and frequent elections. As he also mentions in Federalist 55 and Federalist 56, the size and structure of the legislature enhances its power by allowing for greater deliberation and reflecting a broader range of opinions. Importantly, Madison noted that the legislature holds the “power over the purse,” by controlling government appropriations and taxation, using its budgetary authority to influence other government actions. For these reasons, among others, Madison stated that the legislative branch would “[draw] all power into its impetuous vortex” and believed in the importance of checks and balances even within the legislative branch, advocating for the creation of a bicameral legislature “to render [the different houses], by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on society will admit.” Thus, different houses of Congress could keep one another in check in the event the executive and judicial branches were unable to do so. Given Madison’s focus on the need for so many safeguards throughout the government to counter the power of the legislative branch, one might presume that Congress’ domination of all other branches would be the most likely cause of constitutional dysfunction in America.

The Most Powerful Branch of the American Government

Yet while many of Madison’s theories and predictions often proved prescient, his fear of an uncontrollable legislature never came to fruition. Instead—in a way that Madison never foresaw—the legislative, judicial, and executive branches were firmly supplanted by what is effectively a fourth, unaccountable branch of government: the independent agencies and departments that, while technically part of the executive branch, seized and combined all other branches’ respective powers. The regulators have now taken over and exert their will with little recourse from the people they are intended to serve. As mentioned by E. Donald Elliott here on Constitutional Discourse, Congress’ passage of the Administrative Procedure Act (APA) gave these agencies the authority to make rules that have the force and effect of law. Congress often delegates broad rulemaking authority to agencies using justifications such as a lack of policy expertise, a need for compromise, or a need to focus on bigger-picture issues rather than the minutiae of implementing complex public policy. While the general public can participate in the APA’s notice-and-comment process, which requires citizens’ comments to be taken into consideration during the creation of any new rule, the onus of policymaking has shifted from citizens and their representatives to unelected administrative “experts.”

The Democratic Deficit of the European Union

Just as in the founding of the American republic, significant debate centered around the appropriate role of citizens and their representation in the government of the EU. The creation and buildout of the EU has been an iterative process from its original six countries to 27 in the present day. Although the EU government has evolved over time to encompass more nations and regulate more issues, significant concerns regarding the foundational and ongoing democratic deficit[1] in the EU persist. Essentially, the EU’s government powers are too heavily centralized in an unelected branch out of touch with the needs of the everyday citizens. The so-called bureaucratic “experts” making top-down policy decisions neglect the experience of citizens who are themselves experts in the reality of local, everyday life in their respective Member States across the EU.

Yet despite the importance of representation in government, the structure of EU governance remains, in many ways, undemocratic. The European Commission (Commission) holds a considerable portion of the legislative power within the EU’s structure despite consisting of unelected officials. While the Lisbon Treaty sought important reforms to the governance of the EU, these reforms still fell short of adequately considering the voices or representation of EU citizens. The only directly elected representatives of the EU—the EP—cannot propose their own legislation in most cases. The EP’s process of requesting proposals from the Commission still provides too much overarching power to an unelected branch of government, insulating it from direct accountability to and by citizens. This is compensated to some extent by other failsafe mechanisms, such as the vote of censure, providing the right to the Parliament to stop the Commission in its tracks, if they feel that they have overreached their mandate. The EU treaties moreover provide for the delegation of legislative power to the Commission, concentrating the legislative power to supplement or amend legislation in “non-essential” parts alongside executive authorities to implement legislation. While there are some checks and balances, including the use of a “qualified majority vote” by a comitology committee of Member State appointees to reject draft implementing acts, the balance of power tips decidedly in the Commission’s favor. The Commission’s control of legislative proposals gives it broad agenda-setting power and the leadership position on all comitology committees while limiting the direct influence of the EP and the Council of the European Union (Council) in the comitology process. Furthermore, even in circumstances in which the EP and Council believe the Commission exceeds the bounds of delegated power, the Commission is under no obligation to amend the act accordingly. Additionally, the judiciary branch of the EU, the Court of Justice of the European Union, has largely served to rubber stamp the policies dictated by the non-representative Commission, imposing them on member states without citizens’ recourse. In short, the overall complexity, opacity, limited participation, and limited representation in the EU lawmaking and regulatory processes disenfranchise citizens across the EU, leading to a lingering sentiment of democratic deficit.

If the diagnosis is correct, reigning in bureaucracy will require the empowerment of citizens through their elected representation in the legislative branch. So, what can be learned from the cursory comparison between insulated, unaccountable bureaucracies in the US and EU and the disenfranchisement of their respective citizenry?

Reclaiming Legislative Power in the United States

First, both government systems need reform to magnify the voice of the people and empower their legislative branches. Fortunately, recent developments in American constitutional jurisprudence have generated significant momentum to that end. The US Supreme Court’s recent ruling overturning the so-called Chevron deference doctrine, which previously required courts to defer to agency experts to implement ambiguous congressional statutes, has created a gap in the lawmaking process and Congress seems poised to take charge. Legislators now appear ready to challenge a variety of regulations that they argue have exceeded congressional delegation of legislative authority. Additionally, Congress seems to recognize that the ruling means greater onus will now be placed on elected Members of Congress and their staffs: both to ensure that new laws are written as precisely and specifically as possible and to potentially revisit current laws that have been written too broadly. Unfortunately, this will simultaneously diminish the use of previous tactics for brokering bipartisan compromise such as the use of ambiguous language or providing a wide latitude for agencies to sort out contentious details of policy implementation. Regardless of the potential for future legislative logjams, Congress should welcome the opportunity to reclaim its legislative power from insulated and unaccountable bureaucrats.

However, the success of Congress’ attempt to reclaim legislative authority will depend on significant structural reforms and the tactful use of this regained authority by Members. For one, Congress will need to end its habit of budgeting just 0.4 percent of annual spending for its own operations as the rest of the federal budget balloons increasingly. Congress’ additional appropriations for its own operations should be used to hire additional—and more skilled—staff, as well as increase the overall resources for Members and Committees to engage skillfully on complex issues while limiting reliance on lobbyists and other outside groups. Additionally, these new resources and staff should be geared toward critically examining the remaining 99.6 percent of the discretionary budget[2] spread across the rest of the federal bureaucracy, as well as the non-discretionary entitlement spending that grows each year. The congressional power of the purse should also be used to critically examine each federal government program funded by the twelve annual appropriations measures; Congress should defund programs outside the scope of congressional authorization or those that fail to pass constitutional muster. While many of these reforms have long been considered unrealistic fantasies, political momentum has given Congress the ability to view these reforms as tangible, though distant, possibilities.

Finally, at least one important check on executive power used in the EU should be adopted in the US: the ability to veto executive branch regulations before implementation. While current authorities under the Congressional Review Act allow Congress to overturn a regulation after implementation, the legislative process is too slow to deal with the sheer volume of rules retroactively. This is why the idea of a congressional check prior to implementation has been proposed and even passed the House in multiple sessions: the Regulations of the Executive In Need of Scrutiny (REINS) Act. The REINS Act would restore legislative authority to Congress by allowing it to vote on every rule designated a “major rule” before such a rule is implemented. A process like this can and should be required by Congress as a part of whatever new equilibrium develops between the Legislative branch and Executive branch in the wake of the Chevron ruling.

Reforming the European Union

Similarly, there are obvious ways in which the EU could better open itself to the democratic will of its citizens. Perhaps the momentum for democratic reform in the EU is due less to any recent substantive policy change or major court ruling and more to the electoral momentum of minority parties throughout the EU. Even as Commission President Ursula von der Leyen seems to acknowledge the EU’s shortcomings in light of minority parties’ appeal, she falls short of offering the substantive democratic reforms needed to give people a greater voice and vote in EU governance.

In short, the current EU government has failed to listen, understand, or address the concerns of the average citizen, leading them to look elsewhere for viable political representation. The answer to more responsive governance in the EU is, in part, to empower the EP to reflect the will of its electorate and reign in the excess authority and bureaucracy of the unelected Commission. The EU’s July 2024 “Parliament 2024” reforms package (a previous analysis of which can be read on Constitutional Discourse here and here) seems to acknowledge the need for improving democratic and legislative engagement throughout the European Union and makes several changes to that end. Yet these reforms do not grant broader powers to the EP, nor do they appear to weaken the almost unilateral concentration of legislative and executive power in the Commission. It is understandable that the Commission, like any branch of government, has no desire to willingly give up its power; unless circumstances change, however, the Commission’s time window to dictate specific reforms on its own terms appears to be narrowing.

At the Conference on the Future of Europe, which ended two years ago, numerous reforms were proposed by EU citizens to strengthen democratic involvement. At least three significant changes suggested in the final report are relevant here: 1) granting the European Parliament the right of legislative initiative; 2) granting European citizens the right to elect the Commission President via direct election or a lead candidate system; and 3) giving the EP the right to decide the budget of the EU. These align relatively closely with the recommendations for Congress’ reclamation of legislative power in the US. Each of these reforms would grant the EP and EU citizens a greater hand in EU governance, including more control over budgetary and spending decisions. Despite the involved process of soliciting citizens’ input during the Conference, it is unclear which recommendations—if any—have been taken seriously enough for implementation. Perhaps this reinforces the hollowness of current EU governance for its citizenry—the Commission will allow citizens to speak, but it does not appear to listen. By making the Commission in some way directly accountable to the people through these or other structural governmental changes, it is more likely that the Commission will listen and respond to the needs of EU citizens.

While these proposed reforms touch on certain substantive issues concerning the separation of powers and checks and balances in the US and EU, this list is by no means comprehensive. Many more thorough analyses exist within scholarship exploring the need for regulatory, legislative, and governmental reform in the US and EU. However, this brief exploration hopes to highlight some of the more pressing and relevant issues that merit comparison between both systems’ respective governmental dysfunction.

Conclusion

Overall, the government dysfunction impacting the US and EU is similar, though with notable distinctions. Both the US and the EU have weak legislatures that find themselves unable to adequately represent the needs and desires of their respective electorates. Congress chose to delegate away the legislative power that it initially held to the increasingly powerful and unaccountable executive branch departments and agencies. Alternatively, the EP’s impotence is both foundational and structural, creating a democratic deficit from the start of the EU project. Consequently, both the US and EU find themselves in the stranglehold of unelected and unaccountable officials dictating top-down policies across the whole of society. As such, both entities’ legislatures must immediately reassert themselves to bring governance back in alignment with the needs and desires of their citizens.

Fortunately, contemporary circumstances compel change. Unfortunately, effective legislatures rarely produce radical change quickly. Instead, good legislatures make small changes over time that move policy gradually in the right direction. As such, while the reforms mentioned briefly here constitute important means for representative bodies to strengthen their legislative powers, it is overly optimistic to think that the adoption of several new policies alone will suffice to improve government function immediately. The empowerment of legislatures to better align and represent the needs and desires of the people is a careful, strategic, and constant effort that can be easily undone by even a few small missteps. However, it is an endeavor that must be undertaken to end regulation without representation and restore representative governance that meets the needs of citizens in the US and EU.

Robert Burkett currently serves as Chief of Staff and Senior Advisor to a nonprofit dedicated to liberty, constitutional government, and religious freedom in Washington, DC. Previously, he has worked in the US House of Representatives, the US Department of Labor, and the US Department of Commerce. He holds a B.A. in Anthropology and a B.A. in Political Science from the University of Notre Dame. Disclaimer: The views expressed are solely the author’s own views and do not express the views or opinions of his employer.

[1] “Democracy” and “republic” are often used interchangeably. However, this author would contest that there are important differences. In a “democracy,” everyone directly votes on issues, and the majority rules. Alternatively, in a “republic,” power is held by people and their representatives, with people electing representatives to decide laws and policies. In this sense, the EU’s “democratic deficit,” is arguably more of a “republican deficit.”

[2] The congressional budget process is complex. It generally entails the submission of a President’s budget reflecting Administration priorities; agreement between the House and Senate on a budgetary plan for broad spending levels in a given fiscal year; and then House and Senate passage of twelve annual appropriations measures. These twelve bills provide funding for specific individual programs that make up roughly one-third of federal discretionary spending (as opposed to non-discretionary/mandatory spending) each year. Unfortunately, the process has been significantly less open and effective since FY1997, the last time each of the 12 bills was individually passed; some or all of the appropriations bills are now regularly packaged together into an “omnibus” or “consolidated” appropriations package requiring a straight up-or-down vote so the government does not run out of funds prior to October 1, the start of the next fiscal year. Congress’ ability to take the reins of legislative authority and the federal budget back will also entail returning to the individual consideration and passage of the twelve annual appropriations bills (so-called “regular order”), rather than via one bill that cannot be amended and, if it failed to pass, would shut down the federal government. This is arguably the biggest hurdle in Congress reasserting its authority.