(This testimony draws heavily from materialprepared by David Schoenbrod and Gene Healy for a forthcoming
Cato Institute Policy Analysis. )
In 1995 the 104th Congress attempted to deal with our $500billion regulatory burden by regulating the regulators. Senate Bill343, the Dole-Johnston Regulatory Reform Bill, would have grafted anew web of rules--mandating cost-benefit analysis and scientificrisk- assessment--onto the impenetrably dense administrativestructure that already exists.
Giving regulatory agencies a dose of their own medicine is alaudable idea, but it will not solve our current dilemma. Indeed,by focusing chiefly on the monetary costs imposed by the currentregulatory regime, congressional reformers have misconstrued thenature of the threat that regime poses. Instead of reinventing theregulatory state, Congress should take back its power to make thelaw.
Since the New Deal, Congress has ceded more and more of itslegislative authority to executive branch agencies. This delegationof lawmaking power is ill advised and illegitimate, for severalreasons:
- Delegation violates the Constitution, subverting the centralstructural principle of that document: the separation ofpowers.
- Delegation severs the people from the law, underminingdemocracy by allowing vitally important decisions of governance tobe made by unelected, unaccountable officials.
- Delegation is a political shell game, allowing legislators tosimultaneously support the benefits and oppose the costs ofregulation.
- Most importantly, by allowing those who enforce the law to makethe law as well, delegation subjects the lives, liberty andproperty of Americans to arbitrary rule.
Reservations about delegation are not limited to one side of thepolitical spectrum; recently, concerns about the extent to whichCongress has relinquished its lawmaking authority have beenexpressed by civil libertarians such as the ACLU's Nadine Strossen,good-government reformers like former Sen. Bill Bradley and DebraKnopman of the Progressive Policy Institute, committed Progressivessuch as the New Republic's Jacob Weisberg, and constitutionaloriginalists such as former Judge Robert Bork and Judge DouglasGinsburg. Despite their disparate perspectives, these thinkers havein common a concern for the vitality of our republican system ofgovernment--a vitality that has been sapped by Congress's refusalto take responsibility for the law. That vitality can only bereclaimed by forcing the peoples' representatives to reclaim thelaw. Reclaiming the law will require a restoration of the scheme ofseparation of powers outlined by the Framers--a return, in otherwords, to the original design.
The Original Design
The separation of legislative, executive, and judicial powers isthe central principle of our Constitution's architecture. Thisstructural principle, according to legal scholar Rebecca Brown, is"a vital part of a constitutional organism whose final cause is theprotection of individual rights." Indeed, it was because the powersof the federal government were both enumerated and separated thatmost of the delegates to the Constitutional Convention thought thatindividual liberty could be preserved without a Bill of Rights.Alexander Hamilton held that the Constitution's system of separatedand enumerated powers was "itself, in every rational sense, and toevery useful purpose, A BILL OF RIGHTS."
The doctrine of separation of powers attained its axiomaticstatus for the founding generation in part through the historicalexperience of the colonies in their struggle with Britain, and inpart through the writings of a number of influential politicaltheorists. The Declaration of Independence's bill of particularsagainst George III indicted the British king for several violationsof the principle, among them, subverting the independence of thecolonial legislatures, and making "judges dependent on his willalone." The doctrine had also been articulated by, among others,Locke, Blackstone, and, especially, Montesquieu, whom Madisoncalled "the oracle." As constitutional historian Forrest McDonaldnotes, "American republican ideologues could recite the centralpoints of Montesquieu's doctrine of separation of powers as if ithad been a catechism."
Like Montesquieu, the Framers viewed political liberty as acondition in which citizens are free from arbitrary power and canexpect to be secure in their persons and property. As Montesquieuput it in The Spirit of the Laws, "The political liberty of thesubject is a tranquillity of mind, arising from the opinion eachperson has of his safety. Concentration of two or more of the threeclasses of power-- legislative, executive, judicial--in a singleorgan of government would destroy that tranquillity, for reasonsthat John Adams expressed succinctly in a pamphlet published in1776: "Because a single assembly, possessed of all the powers ofgovernment, would make arbitrary laws for their own interest,execute all laws arbitrarily for their own interest, and adjudgeall controversies in their own favor." According the late MalcolmP. Sharp, "Solicitude for liberty and property, and notunreasonable fear of what majority rule might do to them" were theprimary impetus behind the enshrinement of separation of powers inthe various state constitutions and its role in shaping the federalconstitution.
To the end of preserving individual liberty and the rule of law,therefore, the first three articles of the Constitution neatlyapportion the legislative, executive, and judicial powersrespectively, to three separate bodies. Article I states, "Alllegislative powers herein granted shall be vested in a Congress ofthe United States"; Article II vest-s the executive power in thepresident; and Article III provides that the judicial power shallbe vested in the Supreme Court and any inferior courts Congressdecides to create. Neither the Framers nor Montesquieu adhered to adoctrine of pure separation of powers--a theory that wouldhermetically seal each department from the others. But thedeviations from that principle are few, and explicitly prescribed.'Indeed, Madison devoted Federalist 47 to defending these minordeviations from a theory of pure separation, readily granting that,were the proposed constitution guilty of a tendency toward mixingthe legislative, executive, and judicial powers, "no furtherarguments would be necessary to inspire a universal reprobation ofthe system.',
The precise limits of each respective function are not definedwithin the text of the Constitution, but that does not mean thatthe differences between them are incapable of being discerned. Inan elegant reduction Gary Lawson of the Northwestern UniversitySchool of Law writes, "Consider, for example, a statute creatingthe Goodness and Niceness Commission and giving it power 'topromulgate rules for the promotion of goodness and niceness in allareas within the power of Congress under the Constitution.'"Clearly, such a commission would both make and enforce the law. 2The President participates in the legislative process via thepresentment clause and his veto power. The Vice President is giventhe tie-breaking vote in the Senate. The Senate confirms treatiesand important executive branch appointees. It also has the judicialpower to try impeachments
Statutes that express goals, even specific ones, but leave it tothe executive branch to generate, the rules binding on privateconduct, delegate the power to make law, and are thus illegitimate.John Locke, whose authority among the founding generation wasrivaled only by Montesquieu's, held that the legislature "cannottransfer the power of making laws to any other hands, for it beingbut a delegated power from the people, they who have it cannot passit over to others."
A statute meeting the test of nondelegation should clearlyresolve most cases that arise under it. A person interested inwhether certain conduct is prohibited should, under such a statute,be able to discern the answer from reading it. All statutes requireinterpretation, but the job of a law interpreter in the executiveor judicial branch is to look backward to what the lawmakersintended, rather than forward, to determine what would be wisepublic policy. Cornell University Law School professor Cynthia R.Farina states the relevant question thus, "Are decisions of publicpolicy being made by someone other than those who the people havechosen as their representatives?" if so, then the statute inquestion fails the test of nondelegation contemplated by theConstitution. Under a revitalized nondelegation doctrine, therewill indeed be hard cases- instances in which there is no "brightline" between interpreting the law and actually making it; however,the vast majority of regulatory rulemakings issued under thecurrent system do not constitute hard cases.
The Constitution in Exile
Before the New Deal, wholesale delegation of legislativeauthority to the executive was largely unknown in the UnitedStates, at least during peacetime. with the coming of the GreatDepression, President Franklin Delano Roosevelt sought sweepingauthority to manage the U.S. economy. With the passage of theNational Industrial Recovery Act of 1933, he got it. The NIRAauthorized industrial and trade associations to draw up codesdesigned to raise prices and restrict production; if the presidentfound the codes unacceptable, he was empowered to immediately issueand enforce them. Upon hearing of the NIRA, Benito Mussoliniexclaimed, "Ecco un ditatore!" ("Behold a dictator!")
In 1935 the Supreme Court emphatically rejected the industrialcode provisions of the NIRA in A.L.A. Schecter Poultry Corp. v.United States. The Court, led by Chief Justice Hughes, argued that"Congress is not permitted. to abdicate or to transfer to othersthe essential legislative functions with which it is thus vested."In his concurring opinion, Justice Cardozo famously characterizedthe industrial code provisions as "delegation running riot." Butafter Roosevelt's 1937 attempt to subvert the judiciary'sindependence t,y enlarging the Court, the Court never again struckdown a New Deal statute on delegation grounds. Fear ofCourt-packing concentrated the mind wonderfully, and the judiciarychose not to stand in the path of the administrative state.
The nondelegation doctrine joined the doctrine of enumeratedpowers in jurisprudential limbo, as an integral part of what JudgeDouglas Ginsburg has called "the Constitution-in-Exile." Along withtheir "textual cousins," the Necessary and Proper, Contracts,Takings, and Commerce clauses, these doctrines have been, accordingto Ginsburg, "banished for standing in opposition to unlimitedgovernment.
By 1944 the Court recognized few if any limits on Congress'sability to delegate. In Yakus v. United States it held thatCongress could delegate to an executive agent the power to setmaximum prices for virtually all goods throughout the economy. Whathas followed since the New Deal and the Second World War has been aline of cases in which "the judiciary typically waxes eloquentabout the serious breach were Congress ever to transfer itslegislative power to other parties;, after which it finds a way touphold the delegation."
That line of cases culminates in Chevron, U.S.A., Inc. v.Natural Resources Defense Council (1983), in which the Court showedextraordinary deference to administrative agencies, interpretationsof their own authority. The Chevron case arose out of a disputeover the meaning of the term "source" in the 1977 amendments to theClean Air Act. Initially, the Environmental Protection Agency underPresident Carter defined the term so that it applied to each sourceof emissions within any given factory. But under the Reaganadministration, the EPA issued a more flexible rule that consideredthe plant as a whole to be the "source." Though the Court found itimpossible to discern a legislative intent with regard to thisissue, it upheld the EPA's decision, holding that when a statute issilent on a particular issue, Congress can be understood to havedelegated the power to make the law to the agency. And, accordingto Justice Stevens's majority opinion, "Such legislativeregulations are given controlling weight unless they are arbitrary,capricious, or manifestly contrary to the statute." Professor CassSunstein of the University of Chicago School of Law suggests thatthe Chevron precedent, which allows agencies to determine theextent and nature of their own authority, ignores the wisdomembodied in the old adage about trusting foxes to guardhenhouses.
With the judiciary's abdication of its constitutional role, weare left with a legal status quo that effectively centralizes allgoverning functions in the executive branch agency: Congress passesa statute endorsing a high-minded goal--accommodation of thehandicapped, safe drinking water, protection of wildlife--theexecutive branch agency then issues and enforces the rulesgoverning individual behavior; the judicial branch, for its part,grants "controlling weight" to the agency's interpretations of itsown authority. In this way, the modern administrative state comesperilously close to realizing the Framers' definition of despoticgovernment, articulated by James Madison in the Federalist 47: "Theaccumulation of all powers, legislative, executive, and judiciary,in the same hands, whether of one, a few, or many, and whetherhereditary, self- appointed, or elective, may justly be pronouncedthe very definition of tyranny."
Delegation Running Riot
The administrative state erected since the New Deal is a massiveamalgamation of Professor Lawson's "Goodness and NicenessCommissions." In the service of broadly popular societal goals,Congress has delegated ever-increasing amounts of legislativeauthority to the executive branch. What follows are just a fewillustrative examples of delegation's role in modern government andthe concomitant threats to civil liberty and government. This listmakes no pretense of being exhaustive; huge swaths of our statutorylaw, and most of the Federal Register would fail the test of arevitalized nondelegation doctrine.
The FDA and Tobacco
On August 10, 1995 the Food and Drug Administration unveiled aproposed package of new regulations ostensibly designed to reduceteenage smoking. Among the proposals: (1) the FDA would ban alloutdoor advertising within 1,000 feet of any playground, orelementary or secondary school; (2) in magazines that couldconceivably be read by children, the agency would limit advertisingto black text on white background; (3) all cigarette advertisingwould have to include the phrase "Cigarettes--A Nicotine DeliveryDevice"; (4) the agency would ban vending machines, self-servicedisplays, sale and distribution by mail, individual cigarettesales, and cigarette packs of less than 20.
There are any number of constitutional objections to be made tothe FDA's proposal, among them that it: relies on an absurdly broadconception of the Commerce power; violates First Amendmentprotections of commercial speech; encroaches on state prerogativesunder the Tenth Amendment--but most salient for the purposes ofthis paper is that the FDA's proposal is based on a sweepingdelegation of legislative authority.
The FDA's proposal constituted a rather dramatic turnaround,since the agency had long held that it did not have the authorityunder the Food Drug and Cosmetic Act to regulate cigarettes unlessthe manufacturer made health claims. In fact, in 1977 the FDAcommissioner rejected a petition filed by the anti-smoking activistgroup Action on Smoking and Health requesting that the FDA restrictthe sale of cigarettes to pharmacies. ASH challenged thecommissioner's decision in the federal courts. In ASH v. Harris,the U.S. Court of Appeals upheld the commissioner's decision, butmade it clear that the FDA was free to take a more expansive viewof its authority should the agency choose to do so: "Nothing inthis opinion should suggest that the Administration is irrevocablybound to any long-standing interpretation and representationsthereof to the legislative branch. An administrative agency isClearly free to revise its interpretations. 24
Dr. David Kessler's appointment as FDA commissioner in 1990heralded the arrival of a new, more aggressive agency--one that wasfully prepared to exploit such judicial deference. Kessler's FDAcrafted a creative interpretation of the Food Drug and CosmeticAct-- one which would allow the agency to significantly restricttobacco products without endorsing outright prohibition. Ratherthan regulate tobacco itself as a drug--because cigarettes couldnot possibly be approved as safe and effective--the FDA bases itsclaim for jurisdiction over cigarettes on the 1976 Medical DeviceAmendments to the Food Drug and Cosmetic Act. The agency intends toregulate cigarettes using the restricted device provisions of thatact. Specifically, the agency argues that cigarettes are nicotinedelivery devices, and thus subject to regulation as a combinationdrug/device product. "Chew" and "snuff," tobacco leaves that areused orally, are also considered "devices" for the purposes of theregulations. The agency claims that its authority over restrictedmedical devices allows it to regulate cigarettes and other tobaccoproducts without taking them off the market completely. Thisapproach, according to the FDA, "affords the most ... flexiblemechanism for regulating the sale, distribution, and use of theseproducts."
The FDA's proposed regulations were initially submitted toPresident Clinton, who approved them. The Washington Post's front-page article on this development- led with this curious sentence:"President Clinton has given the Food and Drug Administration forthe first time the authority to regulate cigarettes." Thoughclearly inaccurate with regard to constitutional law--authority toenforce a statute through regulation derives from Congress, not thepresident-- the Post writers' phrasing accurately described thecurrent legal environment of unrestrained executive authority. Thesame article reported that President Clinton promised to haltimplementation of the FDA rulemaking if Congress would pass theproposed regulations into law.
Such regulatory blackmail demonstrates how far we've departedfrom our constitutional framework, in which Congress legislates andthe executive branch enforces the law. Instead, pace Clinton'ssuggestion, the executive branch can use its illegitimate andunconstitutional ability to make law as a bargaining chip to forceCongress to legislate. Indeed since 32 senators voiced theiropposition to the proposals in a December 28, 1995 letter to theFDA, it is safe to conclude that, absent executive blackmail, suchrestrictions could not be passed through normal constitutionalchannels.
The FDA's ability to make the law stems from a combination ofstatutory vagueness and judicial deference. This dangerouscombination has resulted in metastasizing authority for the agency,as its oversight of medical devices illustrates. The FDA'sdefinitional agility with regard to cigarettes is hardly its mostexpansive attempt to assert -jurisdiction using its medical deviceauthority. In the last several years the agency has invoked thatauthority to claim oversight of such common consumer items asweight lifting equipment, mouthwash, sunglasses, shoe deodorizers,electric toothbrushes, and television remote controls.
Three months after releasing its draft proposal on cigarettes,the FDA demonstrated just how broadly it views its ill-definedpowers to regulate medical- devices. On December 11, 1995 theagency employed that authority to head off a threat to-of allthings--airline safety. Pilots for carriers serving Las Vegas hadcomplained that the outdoor laser light shows put on by areacasinos were occasionally blinding them and putting theirpassengers in jeopardy. The FDA, invoking its authority to regulatelasers as medical devices, imposed a moratorium on all laser lightshows anywhere within 20 miles of the three airports serving LasVegas. A spokesman for the FDA said that the agency would nothesitate "to extend its coverage to other locales or nationwide" ifit becomes necessary.
Clearly, laser light shows are not intended to, and cannot be,used to diagnose, cure, treat, or mitigate disease, nor do theyaffect the structure or function of the human body. But FDAregulators do not view themselves as executive agents with definedand limited public authority. Instead, they see themselves aspublic guardians with an indeterminate and open-ended mandate to dogood. Wetlands Regulation
With the Federal Water Pollution Control Act amendments of 1972,Congress delegated to the Army Corps of Engineers the authority torequire permits for the dumping of dredged or fill materials intothe "navigable waters" of the United States. By 1977 the Corps haddefined its own mandate broadly enough to allow it to regulatewetlands, including "swamps, marshes, bogs and similar areas"--private property That was not "navigable" in the traditional senseof the word.
In U.S. v. Riverside Bayview Homes (1985) the Supreme Courtupheld the Army Corps of Engineers, broad interpretation of its ownauthority. Citing Chevron, the Court, led by Justice Byron White,held that "an agency's construction of a statute is entitled todeference if it is reasonable and not in conflict with theexpressed intent of Congress." To bolster the claim that the Corps'definition of "navigable waters" was a reasonable interpretation ofCongress's intent, Justice White invoked the legislative history ofthe 1977 amendments to the Clean Water Act. Congressional criticsof the Corps, power grab had attempted to insert a more restrictivedefinition of "waters" into the 1977 amendments. That definition,which would have limited the Corps to regulating waters that wereactually navigable, passed the House but stalled in the Senate.Justice White argued that "A refusal by Congress to overrule anagency's construction of legislation is at least some evidence ofthe reasonableness of that construction." But this is to turn theConstitution on its head: the Framers erected significant barriersto the passage of legislation in an attempt to ensure that each newrule binding on private conduct would be duly considered. Under theConstitution, a law must meet with the approval, or at least theacquiescence, of the representatives of three differentconstituencies: the House, the Senate, and the President. But whenCongress is allowed to delegate its legislative authority, theexecutive branch agency makes the law, and all the constitutionalhurdles that are supposed to stand in the way of frivolouslawmaking then obstruct those seeking to repeal frivolousexecutive-branch lawmaking.
Emboldened by the Court's approval, the Army Corps of Engineersissued an even more expansive definition of navigable waters. By1987 "navigable waters" had come to mean land that containedcertain kinds of vegetation, soil hydrology, or was saturated withwater for at least seven days a year.
In 1989 Ocie and Carey Mills, a father and son from Florida, ranafoul of the Corps' metastasizing authority over land use. TheMillses were found guilty of "discharging pollutants into thenavigable waters of the United States," The "waters" in questionconsisted of a wooded waterfront lot t-hat had no standing water onit. The Millses were sentenced to 21 months in jail each, and oneyear of parole. Though sympathetic to the Millses, plight, JudgeVinson of the U.S. District Court (N.D. Florida) found himselfbound by precedent to uphold their conviction. He wrote: "Adelegation doctrine which essentially allows Congress to abdicateits power to define the elements of a criminal offense, in favor ofan unelected administrative agency such as the Corps of Engineers,does violence to this time-honored principle ... Deferent andminimal judicial review of Congress' transfer of its criminallawmaking function to other bodies, in other branches, calls intoquestion the vitality of the tripartite established by ourConstitution. It also calls into question the nexus that must existbetween the law so applied and simple logic and common sense. Yetthat seems to be the state of the law."
The Abortion Gag Rule
Supporters of abortion rights had reason to lament sweepingdelegation of lawmaking authority in 1988, when Secretary of Healthand Human Services Louis Sullivan decided to change the rulesgoverning federally funded family planning organizations. Title Xof the Public Health Service Act, enacted in 1970, authorized theSecretary of H.H.S. to make grants to and enter into contracts withpublic or nonprofit private clinics offering "a broad range ofacceptable and effective family planning methods and services."Though the legislation prohibited the use of Title X funds to payfor abortions, it was silent as to whether advice about abortioncould be given at federally funded clinics. But almost 20 yearsafter the passage of the initial legislation, H.H.S. SecretarySullivan issued regulations that summarily forbade clinicsreceiving Title X funding to provide information aboutabortion.
In doing so, Secretary Sullivan implemented by fiat a policythat two years earlier had failed to garner a majority of votes inCongress. In 1986 Sen. Orrin Hatch (R-UT) and then-Rep. Jack F.Kemp (R-NY) introduced legislation that would have prohibited TitleX clinics from discussing abortion; that legislation was rejectedby Congress. Sullivan's 1988 regulations accomplished what Hatchand Kemp could not.
Pro-choice advocates were outraged by Sullivan's implementationof the gag rule. They argued that it had never been Congress'sintention to prevent clinics from advising their clients, oftenindigent women, about all safe, legal, and available medicaloptions.
Sullivan's action was challenged in federal court and eventuallyupheld by the Supreme Court in Rust v. Sullivan (1991). In hisdissenting opinion, Justice Blackmun argued that the H.H.S. rulesviolated constitutional rights; he condemned the rules as "content-based regulation of speech" and an assault on abortion rights.Rehnquist's majority opinion makes a convincing case that theregulations did not impinge on constitutional freedoms, since " Alegislature's decision not to subsidize the exercise of afundamental right does riot infringe the right."' However, it wasnot a legislature that made this far-reaching decision, but anexecutive branch appointee, insulated from democratic control.
Nonetheless, the Court once again held that executive appointeeshave broad interpretive authority. Citing Chevron once again, theCourt, led by Chief Justice Rehnquist, reasoned that it was notnecessary to "dwell on the plain language of the Title XI statutebecause we agree with every court to have addressed the issue thatthe language is ambiguous ... When we find that the legislativehistory is ambiguous and unenlightening on the matters with respectto which the regulations deal, we customarily defer to theexpertise of the agency." But, as was the case with wetlandsregulation, the Court's deference essentially placed lawmakingpower in the hands of the executive agency and forced opponents ofthe rule to leap the procedural hurdles the Framers erected toprotect liberty.
As the Framers intended, those hurdles proved difficult tosurmount. Though popular opinion was against the gag rule--a 1991Harris poll found that 78 percent of Americans thought Congressshould overturn it--Congress was unable to pass vetoprooflegislation repealing Sullivan's regulations. President Bush twicevetoed legislation revoking the gag rule, and the rule surviveduntil President Clinton overturned it by executive order on January22, 1993. It thus took five years and two intervening presidentialelections to revoke Louis Sullivan's decree.
It could be argued that some of the examples above more clearlyrepresent usurpations of statutory authority, rather than overbroad delegations. For example, when Congress tasked the FDA withreviewing and approving new medical technology, it could notpossibly have intended that the agency involve itself in airlinesafety. Nonetheless, rule by bureaucratic fiat is the inevitableproduct of a political culture conditioned by wholesale delegationof legislative authority. That political culture, and its effectson the behavior of executive branch regulators, was noted by JamesLandis, one of the leading legal theorists of the New Deal andone-time chairman of the Securities and Exchange Commission. Duringhis tenure at the SEC, Landis observed that: "One of the ablestadministrators ... never read at least more than casually, thestatutes he translated into reality. He assumed that they gave himpower to deal with the broad problems of an industry, and upon thatunderstanding he sought his own solutions."
Having vested unelected officials with the power to make thelaw, legislators should not be surprised if their delegatesinterpret that power broadly. Indeed, given the current legalenvironment of promiscuous delegation on the part of thelegislative branch, coupled with blithe deference on the part ofthe judiciary, it is little wonder that regulators conceive ofthemselves as having virtually unchecked power to do good.
The Dubious Benefits of Delegation
Clearly, wholesale delegation of lawmaking power comes withsignificant costs. Does it bring corresponding benefits? Defendersof the current regulatory regime argue that modern governmentcannot operate without delegation of legislative authority. Indeed,the Supreme Court said as much in a 1989 case involving a statuteauthorizing a commission to make rules governing criminalsentencing: "Our jurisprudence has been driven by a practicalunderstanding that in our increasingly complex society, repletewith ever changing and more technical problems, Congress simplycannot do its job absent an ability to delegate power under broadgeneral directives." This argument reveals misplaced priorities--itputs the alleged needs of the modern administrative state ahead ofthe question of constitutional legitimacy. Congress's "job" afterall, is to safeguard the framework of ordered liberty envisioned bythe Constitution. Even so, the claims that are often made for theefficacy of delegation are vastly overblown.
Rule by Experts?
According to defenders of delegation, agency officials areexperts who make technical decisions, and legislators aregeneralists who make broad policy decisions. But, as discussedabove, Congress usually cannot delegate the technical issues inlawmaking without also delegating the broad issues of policy. Thus,lawmaking inevitably reflects moral judgments about how to balanceand attain competing goals. According to political scientist RobertDahl:
No intellectually defensible claim can be made that policyelites ... possess superior moral knowledge or more specificallysuperior knowledge of what constitutes the public good. Indeed, wehave some reason for thinking that specialization, which is thevery ground for the influence of policy elites, may itself impairtheir capacity for moral judgment. Likewise precisely because theknowledge of the policy elites is specialized, their expertknowledge ordinarily provides too narrow a base for theinstrumental judgments that an intelligent policy wouldrequire.
Perhaps for this reason, as well as because of the politics ofthe appointment process, most agency heads are not scientists,engineers, economists, or other kinds of technical experts. Fromthe EPA's inception in 1970, seven of its eight administrators andseven of its nine assistant administrators for air pollution havebeen lawyers. Moreover, as one observer has noted, "the New Dealconcept of the 'expert agency, breaks down in the modern context ofhealth and environmental regulation. An agency addressing complexscientific, economic, and technological issues must draw upon somany different kinds of expertise that no individual employee canknow very much about all of the issues involved in a typicalrulemaking."
Meanwhile, generalist legislators often vote on laws--such asthose setting the emission limits for new cars--the merits of whichdepend upon the resolution of hotly contested technical disputes.Although both agency heads and legislators often lack the expertiseto evaluate technical arguments by themselves, they can get helpfrom agency staff, government institutes (for example, the Centersfor Disease Control), and private sources (for example, medicalassociations, private think tanks, and university scientists). Inaddition, legislators request advice from their own staffs,committee staffs, and various congressional offices. By payingattention to the source, amount, and tenor of competing advice,both agency heads and legislators can make judgments involvingtechnical issues without fully understanding them.
Another problem with the theory of agency expertise is theassumption that agencies are sufficiently insulated from politicsto make their decisions scientifically, rather than politically.But, agencies are, of course, not really insulated from politics atall, but rather are subject to all kinds of subtle and not sosubtle pressures from members of Congress and the White Housestaff. Agencies are vulnerable to such pressure because they andtheir staffs have interests of their own, such as getting widerpowers, a larger budget, and access to higher appointed positions.Perhaps agency lawmaking is somewhat more removed from legislativepolitics than is congressional lawmaking, but, in acting behindclosed doors to pressure agencies, members of Congress are largelyfree from electoral accountability.
Is Congress Too Busy?
CEOs of large private organizations usually delegate details tounderlings in order to leave enough time to decide the broad issuesof policy. New Dealers argued for delegation on similar grounds;"time spent on details by Congress must be at the sacrifice of timespent on matters of the broad public policy.', Yet Congress doesnot act like an institution too short of time to get involved indetails, especially as it has turned from broad to narrowdelegation. For example, the Clean Air Act and many other statutesgive agencies copious instructions on the handling of many complexquestions. The 2,823-page-long Internal Revenue Code legislates ingreat detail, often creating rules so specialized that they applyto only one taxpayer. Congress legislates about details on an evenmore massive scale in the annual federal budget, which in 1991 grewto 1,527 printed pages on five and a half pounds of paper. Thatbudget, like others, not only decides broad policy--such as theallocation of funds among major program categories--but alsodictates tiny particulars of program administration. For example,Congress decided that $2.5 million of the $55.3 billion grossDepartment of Agriculture budget should go for the planning,design, and construction of a Poultry Disease Laboratory, and thatit should be located in Athens, Georgia.
But in delegating to agencies, Congress often leaves open broadpolicy issues. Delegating major policy choices to a coordinatebranch of government is altogether different than delegatingdetails to underlings. Congress cannot do all of the agencies'work, but it can make the laws--that is, the rules binding onprivate conduct, which, after all, is the job the Constitutionassigns to Congress. Under the Constitution, Congress canappropriately leave to the executive and judicial branches othertasks, such as deciding how to enforce those rules (for example,interpreting the laws and exercising prosecutorial discretion),organizing and running agency operations (for example, assigningtasks to the staff, hiring employees, buying equipment), managingpublic enterprises (for example, the post office or othergovernment operations or property), and making recommendations toCongress (for example, proposing changes in laws).
Legislated laws can be quite general. For example, one sectionof the 1990 Clean Air Act Amendments mandates that the EPA baseemissions limitations for many categories of sources on the levelsachieved by the cleanest 12 percent of the plants in each category.Through this general formula, Congress established a rule ofconduct applicable to many pollutants from many kinds of sources bystating the criterion separating permissible and impermissibleconduct.
Enacting laws forces legislators to take politicalresponsibility for imposing regulatory costs and benefits. Incontrast, delegation allows Congress to stay silent about what theagency will prohibit, thus severing the link between thelegislator's vote and the law, upon which democratic accountabilitydepends.
Congress could achieve the public purposes that it now pursuesthrough delegation in far less time than agencies take to make lawsand in less time than delegation takes Congress in the long run.Acting by itself, Congress would not have to go through the samelaborious processes that it requires of agencies. Congresscurrently accompanies delegation with detailed instructions onsubstance and procedure that constrain agency discretion. Writingsuch instructions would be unnecessary if Congress made therules.
Congress could, however, ask for an agency's help in draftinglaw. For instance, it could require the agency to propose statutorylanguage, prepare supporting analyses, and hold hearings onproposals. The agency's analysis undoubtedly would make use of thekind of information that now is considered in administrativerulemaking. The New Deals leading theoretician of theadministrative process, James Landis, advocated exactly thisapproach. He wanted agencies to propose laws, but not promulgatethem. Landis wrote that agencies would have a better chance ofbreaking the stalemates that often prevent them from protecting thepublic if they could act as "the technical agent s in theinitiation of rules of' conduct, yet at the same time ... have theelected lawmakers share in the responsibility for their adoption."As Landis recognized, since controversy often paralyses theadministrative process, "it is an act of political wisdom to putback upon the shoulders of the Congress" responsibility forcontroversial choices.
Delegation saves Congress from political accountability, but itdoes not save time. Delegation is time-consuming becauseinstructing agencies on how to make the law is a complex task, asthe length of the various Clean Air Acts suggests. Moreover, theissues that one Congress ducks by delegating often reemerge toconsume the time of succeeding Congresses. Although the 1970 CleanAir Act sailed through with hardly a dissenting vote, half of thesessions of Congress from 1970 to 1990 undertook major efforts torewrite the act, in addition to the large amount of time spentoverseeing implementation of the act and doing casework on EPAlawmaking.
Is Legislation Quick Enough? Some political leaders fear thatthe separation of powers mandated by the Constitution is unworkablebecause it leads to gridlock when the president and majorities inthe House and the Senate do not all come from the same party. Thosewho use the negative term "gridlock," however, ignore the fact thatthe political inertia it describes is an integral part of theAmerican Constitutional design. The Framers believed that lawsshould not be made unless they have the broad support that usuallyis necessary to get them through the Article I process. As Madisonput it in Federalist 62, the Constitution is designed to curb the"facility and excess of law-making."
Some see delegation as a cure for divided government. Broaddiscretion allows agencies to make law without the permission ofthe House, Senate, or the president. However, because thepresident, the legislators, and their staffs influence the agency,the stalemate often continues after the delegation, but in a newcontext. Yet, because delegation has ostensibly given the agencythe job of making the law the elected lawmakers can shift to theagency much of the blame for failing to resolve the dispute.Delegation thus short- circuits the nation's only authoritativemethod of resolving disputes about what the law should be, and soputs protection of the public into an administrative limbo. TheEPA's delays in producing the rules required by the Clean Air Actare typical of what happens under many other statutes.
The purported ability of agencies to protect the public quicklyis more apparent than real for other reasons. The AdministrativeProcedures Act theoretically allows agencies to make law in twomonths, and even less in an emergency. It is tempting to comparesuch potential speed with the years that can pass while billslanguish in Congress. Yet Congress can react quickly when it sensespublic support for quick action, while agencies ordinarily needyears to make law.
The Real Reason Congress Delegates
As the discussion above indicates, the typical rationalesoffered to support delegation are flimsy. Congress does not need todelegate in order to seek expert help; nor does Congress needdelegation to ease its workload; still less does delegation helpCongress avoid delays in addressing issues of broad public concern.Why then does Congress delegate?
One of the main reasons Congress delegates is to manipulatevoter perceptions. Delegation allows legislators to representthemselves to some constituents as supporting an action and toothers as opposing it. Legislators, I-or example, can writedifferent letters about the same issue to different groups ofconstituents, with each letter crafted to make the legislatorappear to sympathize with that group, position. Such letters are,of course, far more private than publicly recorded yea or neavotes. As former EPA administrator Lee Thomas described delegationunder the Clean Air Act, "Everybody" is accountable and nobody isaccountable under the way Congress is setting it up, but thelegislators have got a designated whipping boy."
Congress's penchant for covering up its tracks via delegation isnowhere more starkly illustrated than in the congressionalpay-raise controversy of 1988-89. In 1988 Congress used delegationto try to give its members a 50-percent pay raise without losingvotes in the following election. It passed a statute that delegatedto the Commission on Executive, Legislative, and Judicial Salariesthe power to set pay for themselves and other top officials whosepay they linked to their own. Under the statute, if the commissionwere to grant a pay increase, another statute passed before--butnot after-- the increase went into effect could cancer it. When thecommission recommended the 50-percent increase, some legislatorsintroduced bills to cancel it. But this was part of a plan in whichthe congressional leadership would prevent a vote on the billsuntil it was too late to stop the increase. Legislators could thentell their constituents that they would have voted against theincrease if given the chance- thus getting both the pay raise andthe credit for opposing it.
However, the size of the increase, in an atmosphere of antipathyto Congress, provoked such a storm of protest and publicity thatthe public came to see through the charade. Embarrassed, the Houseleadership conducted a secret ballot among members to determinewhether to hold a roll-call vote on the pay increase. Fifty-sevenpercent of the members who responded opposed a roll call vote,although 95 percent of the House members surveyed by Public Citizenclaimed they had supported it. After public opposition to the payraise approached 90 percent, Congress passed a bill to cancelit.
The pay raise controversy illustrates Congress's willingness touse delegation to manipulate voters' perception of its activities.In that particular case, manipulation failed--indeedbackfired--because the public, aided by perceptive journalists, sawthrough the ruse. But manipulation through delegation is usuallysuccessful, because routine government action is neither so readilyunderstood nor so pregnant with symbolic value as the pay raisewas, and so eludes the sustained attention of the press and thepublic.
Not only does delegation let legislators avoid publicly recordedvotes on hard choices, it also allows them to actively pleaseconflicting interests by doing casework on their behalf. Casework,unlike roll-call voting, is not a matter of public record.Delegation thus allows members of Congress to function as ministersrather than legislators; they express popular aspirations and tendto their flocks rather than make hard choices.
Congress's huge reelection rates are in part testimony to thefact that the delegation ruse generally works. During the 1980sonly 88 of 2,175 congressional seats were turned over because of anincumbent's defeat. With delegation members can usually escapebeing ejected from office except upon grounds that would oust aminister from the pulpit--scandal. In those exceptional cases inwhich incumbent legislators do lose elections, their defeat is farmore likely to be caused by some escapade or by voting for a reallaw, such as a tax increase, than by how they shaped the lawthrough delegation.
Getting There from Here
Despite the palpable political benefits of delegation--whichallows congressmen simultaneously to support the benefits andoppose the costs of regulation--by the mid-1970s Congress begangrowing increasingly uneasy about the amount of power it had cededto the executive branch. Popular complaints against arbitrary,capricious, and indecipherable regulatory laws began to havepolitical effect, and Congress began to make noises about "reigningin the regulators." That noise has grown louder by the Congress,until today it is one of the clearest themes of the celebratedcongressional "Contract With America".
The Legislative Veto
Rather than refrain from delegating legislative authority,Congress originally attempted to retain some control over executivebranch agencies through the use of legislative veto provisions. Thelegislative veto usually takes the form of a clause in a statutethat stated that executive branch action pursuant to the powerdelegated in the statute would take effect only if Congress did notveto it by resolution within a given period of time. Use of suchclauses increased significantly with increased regulation duringthe '70s.
This legislative tool was declared unconstitutional by theSupreme Court in the 1983 case INS v. Chadha. Congress hadauthorized the Attorney General to use his discretion in suspendingdeportation proceedings for- selected "hardship cases" amongillegal aliens. That discretion, however, was subject todisapproval via resolution by either house of Congress. Jagdish RaiChadha was one of 340 illegal aliens whose deportation wassuspended by the Attorney General in 1974. In 1975 the House ofRepresentatives passed a resolution reinstituting deportationproceedings for Chadha and five others on the Attorney General'slist. A majority of the Court, led by Chief Justice Burger, heldthat this one-House veto provision violated the separation ofpowers embodied in the Constitution. According to Burger's majorityopinion, the legislative veto contained in the Immigration andNationality Act allowed one House to make law without theparticipation of the other House and the president. According tothe Court, the veto provision violated the Constitution'sPresentment Clause, article I, section 7, clause 3, which requiresthat "every Order, Resolution, or Vote to which the Concurrence ofthe Senate and House of Representatives may be necessary... shallbe presented to thin President" for his signature or veto.
The Court's reasoning was somewhat perplexing; as Martin Shapiroof U.C. Berkeley School of Law has pointed out, if the vetoprovisions are legislative in nature, and thus violate thePresentment clause, what of the regulations that are vetoed? WritesShapiro, "If the congressional veto was unconstitutional because itfailed to allow for a presidential veto, then the delegation of itsrulemaking powers by Congress to the agencies was even moreunconstitutional." Nonetheless, the Court's decision invalidatedscores of legislative veto provisions contained in otherstatutes.
The Breyer Proposal
In a lecture given at the Georgetown University Law Center laterthat year, Judge Stephen Breyer, now associate justice on theSupreme Court, presented a plan for a "veto substitute" that wouldallow Congress to retain control of the law while following therequirements of Chadha. Breyer's proposal would replace thelegislative vetoes with statutory language stating that "theagency's exercise of the authority to which the veto is attached isineffective unless Congress enacts a confirmatory law within, say,sixty days." Thus, under Breyer's scheme, the executive branchwould largely be stripped of lawmaking power; agencies wouldrecommend particular courses of action, but they would not have theeffect of law until they passed through the normal constitutionalchannels.
But how could Congress possibly handle the volume of rulemakingthat modern administrative government is said to require? In hisGeorgetown lecture, Breyer suggested changing the House and Senaterules to allow a special "fast track" for proposed regulationssubject to the confirmatory law requirement. Thus, under the newSenate rules Breyer envisioned, when an executive branch agencyproposed rules subject to such a requirement, a bill containing thetext of that regulation would be introduced automatically under thename of the Majority Leader. That bill would not be referred tocommittee, nor would it be amendable, debatable, nor subject tofilibuster; instead, the Senate would vote yea or nea on the billwithin 60 days of its introduction. The House would adopt similarrule changes.
Breyer's proposal would allow Congress to follow the formalrequirements of Chadha while preserving the substance of thelegislative veto. Under Breyer's plan, if one House disapproves ofa regulation subject to congressional oversight, it can essentially"veto" it. But the confirmatory law requirement Breyer proposedwould change the political dynamic considerably: "The vetosubstitute imposes on Congress a degree of visible responsibilityfor the actions it confirms, a burden that the veto system allowedit to avoid."
The Nickles Amendment
Nineteen ninety four's Republican takeover of Congress gave newimpetus to regulatory reform, and- generated renewed interest inBreyer's proposal. Sen. Don Nickles (R-Okla.) offered an amendmentto the 1996 debt ceiling legislation that embodied a weak form ofthe Breyer proposal. Passed into law as P.L. 104121, it delaysimplementation of major regulatory rules, giving Congress 60 daysto pass a joint resolution invalidating a proposed rule. Thatresolution would then have to be signed by the president. But asRep. Nick Smith. (R-Mich.) has pointed out, the president isunlikely to sign a bill overriding a rule promulgated by his ownadministration. Thus, in many cases, the Nickles Amendment wouldrequire a two-thirds, supermajority vote by Congress to overturn aregulation. As such, it is little better than the status quo, sinceit requires the opponents of bad law to leap all the constitutionalhurdles originally set in place to check overzealous lawmaking.
The Significant Regulation Oversight Act
Representative Smith has introduced a better bill, one thatcomes closer to the confirmatory law requirement envisioned byBreyer. H.R. 2990, the "Significant Regulation Oversight Act of1996," introduced on February 28, 1996, would require significantnew rules to be affirmatively approved by both houses of Congressbefore going into effect. Which rules would be considered"significant" would be defined in the initial statutes providingfor regulation. Thus, Congress would decide initially which typesof rules could be passed by departments and agencies through theprocess outlined in the Administrative Procedures Act, and whichwould have to be legislatively enacted by Congress. For"significant" regulations, the agency would have to send its draftproposal to Congress.
Following Breyer's recommendations, the Smith bill provides forrules changes in the House and Senate allowing for "fasttrack"consideration of regulations. The agency's submission of a proposedregulation automatically creates a resolution to be introduced bythe Majority Leader of each house. But, in contrast to Breyer'sscheme, that resolution then goes to the relevant committee. Within45 days, the committee must decide whether to report the resolutionor vote affirmatively not to report it. If it does neither withinthe allotted time, the resolution goes to the floor automaticallyfor an up or down vote, no amendments permitted.
The Smith bill also includes a provision for revising orrevoking regulations passed prior to the bill's enactment. (Section5) A petition to change or repeal such a regulation would beaccepted when signed by 30 senators or 120 members of the House ofRepresentatives. Such a petition would require the Majority Leaderto introduce a joint resolution revising or repealing theregulation in question This provision would make it easier forregulatory reformers to force floor votes on controversialregulations. A minority of reformers in either house could forcetheir colleagues to take publicly recorded stands on issues theymight prefer to duck. Milton Friedman referred to the weight ofexisting regulatory legislation--hotly debated, but once passed,untouchable--as "the tyranny of the status quo." Smith's billprovides a legislative weapon that can be used to fight thattyranny. As Smith notes, "By placing regulatory power once moreinto the hands of officials that ordinary citizens could speakwith, influence, and vote for, those citizens would retain morecontrol over their lives."
The Congressional Accountability Act
Freshman Rep. J.D. Hayworth (R-Ariz.), chairman of the HouseConstitutional Caucus, has introduced legislation that is moresweeping than either Rep. Smith's bill or the Breyer proposal.Unlike Smith's bill, H.R. 2727, the Congressional ResponsibilityAct of 1995, is not limited to "significant" regulations. Both theSmith bill and the Breyer proposal require Congress toaffirmatively identify areas of authority that it wishes to subjectto a confirmatory law requirement in contrast, the Hayworth billleaves almost nothing to the agencies' discretion: "This Act endsthe practice whereby Congress delegates its responsibility formaking regulations to unelected, unaccountable officials of theexecutive branch and requires that regulations proposed by agenciesof the executive branch be affirmatively enacted by Congress beforethey become effective." The only regulations that the CongressionalAccountability Act would exempt from congressional review areregulations pertaining to agency organization, personnel, and thelike.
Like the Smith bill, the Hayworth bill operates along the linesoriginally suggested by Breyer. Agencies must submit their proposedregulations to Congress, whereupon the Majority Leader of eachhouse is to introduce a bill Enacting the regulation. Instead ofthe bill being referred to a committee. Under Hayworth's framework,any member of the respective house can move to proceed toconsideration of the proposed regulation. The bill is unamendable,and debate is limited to one hour. All such bills must be voted onwithin 60 calendar days of their introduction. However, if amajority of either house votes to suspend the "fast track" rulesoutlined above, the bill will be considered in the same manner asother bills.
Rep. Hayworth's bill, if enacted, would represent an importantfirst step towards ending the constitutional crisis caused byunrestrained delegation. one problem with the approach originallyoutlined by Breyer, and adopted by Rep. Smith, is that it allowsCongress too much discretion over when to delegate. The Smith billrequires Congress to decide with each new statute, which decisionsit would like to be held accountable for. Thus, the Smith approachrequires Congress to strive continually not to delegate, despitethe very real political benefits of doing so.
The Hayworth bill cuts the Gordian knot, defining regulationbroadly at the outset, and holding Congress accountable foranything that can properly be construed as lawmaking.
The main defect of the Hayworth bill, however, is that it wouldnot effect delegations of legislative authority that occurredbefore its enactment. The tyranny of the status quo would continueunabated even if the Congressional Responsibility Act were to pass.Some rules changes along the lines that Rep. Smith's billproposes--allowing petitions to expedite regulatory repeal--aretherefore essential.
Regulation Without Delegation
Would the end of delegation spell the end of the regulatorystate? Many of delegation's defenders seem to think so.Theoretically, however, the entire code of federal regulations asit exists today could have been enacted under the rules changesproposed by Rep. Hayworth.
But of course it would not have been. The point here is not toshow that under a revived nondelegation doctrine the currentregulatory regime can survive unchanged. It is more likely that areturn to nondelegation will mean a return to prescriptive laws, anew respect for federalism, and a renewed appreciation of theFramers' view that the chief danger to republican government liesin legislative overzealousness, not legislative inaction. IfCongress is to reclaim the law, it will be necessary for Congressto do less, do it properly, and be held accountable for theresults.
Defenders of the administrative state view regulators, freedomfrom accountability as a virtue of the system. As FDA commissionerDavid Kessler puts it, "There's a reason FDA commissioners aren'telected." Perhaps so, but it is not a reason that defenders ofrepublican government are bound to respect. Indeed, the reason thatKessler hints at--regulators' sweeping authority to act on whatthey perceive to be the public good, free from the meddling of thepeople's representatives--is inimical to our free institutions asoriginally conceived by the Framers. In the original design, onlyjudicial appointees were wholly insulated from public pressure.But, properly understood, the judiciary's constitutional role makesit "the least dangerous branch." Its power is essentiallynegative--it strikes down laws that violate the Constitution. Thetype of power Commissioner Kessler champions, and exercises, is ofa different nature entirely. It is power over people, the power tomake laws binding on private conduct. That power should not--mustnot--be exercised without responsibility.
Forty years ago 75 percent of Americans professed faith in thefederal government to do the right- thing most of the time. Nowthree quarters tell pollsters that-- they lack such faith. Sostrong is the public's distrust of government that a third ofrespondents in a recent Gallup poll agreed that the federalgovernment represents "an immediate threat to the rights andfreedoms of ordinary citizens." There has been much handwringing oflate over this sea change in public opinion. Following E.J. Dionne,pundits and polls repeatedly ask why Americans hate politics. Theylament the current political culture in which Americans lack faithin their government; feel that they have no influence in thepolitical process; and curse the politicians who offer them nothingbut stale platitudes and non-issues in every campaign.
Few analysts, however, have examined delegation's contributionto this state of affairs. What plagues American political cultureright now isn't really politics, if by politics we mean open,daylight debate over the affairs of state. What plagues us isrunaway administrative (government. The most important,far-reaching decisions in American government are no longer made byelected officials: they're made by executive branch appointees.Americans are right to believe that they have no control over theengines of government. And they're right to curse politicians whorun on issues on which they can have very little impact: abortion,family values, support for "diversity," and the like. over the past60 years our elected representatives have abdicated theirconstitutional responsibility to make the law. A Fourth branch ofgovernment has effectively been created out of whole cloth. Ourpolitical culture will remain poisoned until we neutralize thisbranch and force Congress to accept direct accountability for itsactions.