Legislative Capacity and Administrative Power Under Divided Polarization

25 Pages Posted: 4 Nov 2020

Date Written: October 15, 2020


It is commonly argued that party polarization leads to legislative gridlock, which in turn disables congressional oversight of agencies and thus erodes their constitutional legitimacy and democratic accountability. At the root of this argument is an empirical claim that higher levels of polarization materially reduce legislative productivity as measured by the number of laws passed or the number of issues on the legislative agenda addressed by those laws, both of which are negatively associated with party polarization. By focusing on the content of statutes passed rather than their number, this essay shows that in the era of party polarization and divided government Congress has actually (1) enacted an ever growing volume of significant regulatory policy (packaged into fewer laws), (2) increasingly employed implementation designs intended to limit bureaucratic and presidential power, and (3) legislated regulatory policy substance in greater detail (reducing bureaucratic discretion) when relying on litigation and courts as a supplement or alternative to bureaucracy, a design choice that occurs more frequently under party polarization combined with divided government. It thereby complicates, both empirically and normatively, the relationship between Congress and administrative power in the era of party polarization and divided government.

Keywords: polarization, divided government, administrative state, separation of powers

JEL Classification: K23, K41

Suggested Citation

Farhang, Sean, Legislative Capacity and Administrative Power Under Divided Polarization (October 15, 2020). Available at SSRN: https://ssrn.com/abstract=3712521 or http://dx.doi.org/10.2139/ssrn.3712521

Sean Farhang (Contact Author)

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

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