Administrative Rulemaking

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My name is David Schoenbrod. I am here to testify that Congressand the president should end the practice of delegating toexecutive agencies the power to make the laws.

Although I believe that such delegation violates theConstitution, the genesis of my recommendation is practicalexperience in the ways of Washington. My first job here was workingfor Senator Hubert Humphrey on the staff of the Senate Committee onSmall Business in the summer of 1962. I worked for him again in1963 and 1965, when he was Vice President Subsequently, I clerkedfor a judge on the U.S. Court of Appeals for the District ofColumbia Circuit, where much of the caseload is reviewing agencyrulemaking. Then, I was one of the attorneys who founded theNatural Resources Defense Council. Through most of the 1970's, Ihandled a case load that today would be described as in the fieldof "environmental justice." Overall, this experience has given me aclear view of what really happens when Congress and the presidentturn over their joint lawmaking power to agencies. My understandingof how delegation really works led me to question whether it reallyis in the public interest. To come to grips with that question,with the chief example being my book: Power Without Responsibility:How Congress Abuses the People Through Delegation (Yale U. Press,1993)(1-800-YALEUPS).

Let me start by telling you about one campaign that I lead forthe environmental side while at NRDC, the campaign to controlairborne lead pollution, chiefly from lead additives to gasoline.Today, official Washington congratulates itself on how it handledthe airborne lead problem. In his 1996 State of the Union message,President Clinton applauded that "lead levels in children's bloodhave been cut by 70 percent" through a "generation of bipartisaneffort". I have a different story to tell in which delegation byCongress and the president delayed meaningful response to animportant health hazard.

In 1970, when Congress was debating the Clean Air Act, one ofthe most insistent public demands was to reduce lead additives togasoline. Of course, the chemical companies that made leadadditives and the petroleum refiners that put them in gasolineopposed any such move. With the benefit of hindsight it would havebeen best if Congress received reports from the experts in thefederal agencies, taken testimony, and then decided whether toenact a law itself to reduce the lead content of gasoline. I haveno illusions that the result would have been highly rationalized orscientific. Rather, it would have been a political response topolitical facts and the political facts were these. Congress andthe president felt under great pressure to show progress on airpollution. Lead in gasoline was a major symbol of the problem.Bumper stickers reading "Get the Lead Out" were prevalent. Refinerswould not have felt great pain in substantially reducing, but noteliminating, lead in gasoline because adding more lead per gallonproduces diminishing economic benefits. Without delegation, theupshot would, I think, have been a law that substantially reducedthe content of gasoline in the early 1970's.

What Congress and the president did, of course, was to enact theClean Air Act of 1970, which delegates their lawmaking powers toEPA wholesale, yet with exacting specifications about how it shouldmake the law. Despite all the verbiage in the act, the hard choicesabout lead in gasoline and just about every thing else were left toEPA. Nonetheless, members of Congress and the president told theirconstituents that they had made the "hard choices" such that everyharmful pollutant would be brought down to safe levels within thenext several years.

As to lead, EPA promptly moved to require that lead freegasoline be used in the new cars with the emission control devices,but that was to protect the emission control devices from lead, notto protect children from lead. The children were not beingprotected because there were tens of millions of old cars on theroad that still used leaded gasoline, and the refiners were makingup for the ban on lead in the gasoline for the new cars by puttingmore lead in the leaded gasoline for the old cars. EPA realizedthat the health risk continued and initially proposed to reduce thelead content of gasoline. But, the chemical and refining industriesmobilized members of Congress, including some liberal Democrats, topressure EPA not to act and the regulation of airborne lead toprotect health was put on hold.

At this point, in 1972, I began to file a series of law suits toforce EPA to regulate lead in gasoline and to establish a nationalambient air quality standard for lead. I won the law suits and thecourts ordered EPA to exercise the authority delegated to it. Atthis point, the public was supposed to get the pay off fromdelegation: a technical issue would be resolved by the expertslooking at the data. The problem was that studies did not provideclear answers, but rather showed the health consequences of lead inthe air depended upon a series of questions as to which scientistsclashed. On the record, EPA dealt with this uncertainty through aseries of guesstimates. In reality, the guesstimates were shaped toallow the agency to come up with a result responsive to thepolitical pressures applied to the agency to come up with a resultresponsive to the political pressures applied to the agency bymembers of Congress and White House acting at the behest ofconstituents and contributors.

So far, my story shows that the main rationale for delegation -let the experts decide the technical issues - is hogwash. There areseldom clear technical answers. In this town, all knowledge ispoliticized. In any event, the questions at bottom are nottechnical ones but rather questions of values -- for example, thebalance to be struck between health and economic considerations.Moreover, the people making the final decisions at the agenciestend to be lawyers, just like many members of Congress. With theadvice of experts, Congress does vote on technical issues when itis politically convenient.

The other great rationale for delegation is supposed to be thatagencies are able to resolve controversial issues with dispatch. AsI have already indicated, it took years of litigation to force EPAto pick up this hot potato. It took years more of administrativeprocessing, and more trips to court, to get EPA to conclude itsrulemaking proceedings. There, in turn, were subject to timeconsuming judicial review. And, when that was over, EPA under bothdemocratic as well as Republican administrations initiatedadditional rulemaking proceedings to postpone implementation of thelead in gasoline regulations. The agency proposed rulemakingweakening or strengthening the regulations once in 19976, twice in1979, once in 1980, four times in 1982, three times in 1983, oncein 1984, four times in 1985, and once in 1986. Before EPA everresolved the lead in gasoline dispute, most of the old cars thathad still could use leaded gasoline in the early 1970's had gone tothe scrap heap so that petroleum refiners no longer cared to bothermarketing leaded gasoline. As a result, EPA under President Reaganissued a regulation eliminating lead from gasoline in 1986. In sum,over a decade in a half, the lead in gasoline issue became mootbefore EPA ever resolved it.

In sum, the theory that delegation is a way to resolve issueswith dispatch simply does not square with reality. Agencies cannotresolve controversial issues with dispatch because all thepolitical pressures that Congress would have to wrestle with inresolving an issue are also felt by the agency and, in addition,Congress imposes upon the agencies extremely time consumingprocedural requirements and then fails to give them sufficientfunding to do fulfill these requirements.

The delay occasioned by delegation meant that the majordecreases in the lead content of gasoline did not take place untilthe late 1970s and early 1980's. As a result, the tens of millionsof children who went through early childhood after the early 1970'swere unnecessarily exposed to harmful levels of lead in gasoline.Now that lead is out of gasoline, we know that it increasedfourfold the lead burden carried by the average young children,with measurable adverse health consequences.

Having used the story of lead to suggest why delegation isunnecessary, let me explain why it undercuts democracy. TheConstitution was designed to allow voters to hold the lawmakersthey elect accountable for the laws by requiring that they beenacted by majorities in both houses and signed by the president(subject of course to the provision for overriding presidentialvetoes). This way, lawmakers are supposed to take individualresponsibility for controversial laws through their publiclyrecorded notes. Delegation allows our elected lawmakers to passresponsibility for the laws along to unelected bureaucrats. But, indelegating, members of Congress and the president do not give uptheir power over the laws, just their responsibility. They retaintheir ability to influence the laws by pressuring agencies in thecourse of doing Casework, unlike votes on statutes, is not recordedin the Congressional Record and members can do casework on bothsides of a controversy.

Defenders of delegation say that it is nonetheless consistentwith democracy because Congress and the president can enact astatute to reverse a law made by an agency. But, usually, no suchbill ever reached the floor. As a result, laws are sustainedthrough the collective inaction of Congress and the president. Theupshot is that the elected lawmakers bear no individualresponsibility for the laws.

Earlier in this session Congress enacted as part of the SmallBusiness Regulatory Enforcement Fairness Act of 1996 a procedurethat would make it easier to bring to the floor a bill to revoke alaw promulgated by an agency. While the new procedure is a step inthe right direction, the proper destination is compliance with theConstitution. While the Constitution requires the House, theSenate, and the president to enact a new law, the new procedurerequires the House, the Senate, and the president to revoke a newlaw. The Constitution requires joint action to make a law to ensurethat law are made only if there is broad political support. Incomparison to the Constitution, the new procedures tilts towardsmore regulation.

Moreover, under the new procedures, ways will be found to avoidvoting on many controversial rules. If all the controversial rulesare to be voted on anyway, why not follow the lawmaking procedureordained in the Constitution?

There is a final, and to me, overpowering reason to think thatCongress and the president should require that laws be make onlythrough the means ordained in the Constitution. To explain why, Ireturn to the Clean Air Act. Air pollution laws must necessarilybalance health and economic considerations. If Congress and thepresident themselves make the laws, they inevitably must strike thebalance. But, it they delegate, they can promise, as they did inthe 1970 Clean Air Act, that the agency will make laws that protecthealth and protect the economy -- that we will have guns andbutter, that we will have our cake and eat it too. With Congressand the president having legitimated conflicting politicalexpectations, whatever the agency does will stir disappointment insome constituency, which members of Congress and the White Housewill relay to the agency. The result is delay, complexity, andconfusion -- delay inprotecting health, complicity in the form ofendless agency proceedings for which taxpayers, shareholders, andconsumers end up footing the bill, and confusion in the sense thatindustry does not know what its responsibilities will be. Andbecause being able to promise guns and butter is so politicallyirresistible, Congress is induced, with the best of intentions, toenact more and more regulatory schemes. In this sense, delegationis a kind of political addiction. The new procedures do not kickthe addiction, but rather offer a way to say "I'm sorry" for just afew of consequences. There is an obvious solution. Just say "no" todelegation.

David Schoenbrod

Subcommittee on Commercial and Administrative Law
Committee on the Judiciary
United States House of Representatives