For all that, the very fact that Congress resorts to delegation so frequently and extensively shows that it is a highly effective way of institutionalizing irresponsibility, and that lawmakers find the alternatives more costly. Curbing delegation would therefore be worthwhile, even if Congress could find partial substitutes.
The critical question is how to do this. There is no easy answer. The institutional incentives--the desire to do favors and to escape blame--that make delegation so popular also ensure that the players won't change the system. Only sustained public outrage might make them do so, but delegation is far too arcane a subject for radio talk shows or call-in campaigns.
Schoenbrod knows this and explains, in a critical chapter, "Why the Courts Should Stop Delegation (and Nobody Else Can)." He argues persuasively that the logic and language of the Constitution impose limits upon delegation; that the Supreme Court has ignored these limits and, in fact, denied their existence for decades; and that the commonly cited reason for this abstention--the lack of judicially manageable standards of permissible delegation--is a cop-out.
However, the Supreme Court is rarely guided by intellectual integrity and constitutional logic, and it is highly unlikely that the Justices would develop a robust non-delegation doctrine on their own.
As Schoenbrod himself ably demonstrates, the argument against delegation rests ultimately on a substantive presumption in favor of private orderings and against government intervention. The entire point of prohibiting delegation is to force a resolution of conflicts and to focus responsibility--in economic language, to drive up legislative transaction costs. So long as legislation requires a near-consensus, laws will be genuinely public-regarding or, at least, reflect a broadly acceptable compromise. But a reduction of transaction costs, through delegation or other means, increases both the total volume of legislation and the ratio of special-interest scams.
The Founders, of course, thought that this would be bad, which is why we have bicameralism, the presidential veto, and separate constituencies and different terms for the president, the House, and the Senate. The trouble is, the Supreme Court has a very different perspective. Modern constitutional law is based on the premise that the Court must not interfere with interest groups politics except to protect racial and other minorities or "preferred freedoms," such as speech and sex. Contracts, property, and other such rights that are the target of ordinary legislation are largely ignored, as are the structural constitutional constraints that used to protect liberty.
The Court's permissiveness toward delegation is of one piece with this perspective. Both are intellectually bankrupt, but the Court cannot shift gears without precipitating a major brawl with Congress. The Court doesn't do that very often. The most recent example in fact is the Court's resistance to the New Deal. Not surprisingly, the two cases in which the Supreme Court last struck down congressional enactments on delegation grounds date back to this era. But the Court lost the constitutional war, and the precedents that gave force and effect to the constitutional constraints on the federal government, including the anti-delegation cases, were effectively overruled. The Court correctly concluded that in the long run, it cannot resist the social and political elites. It has been loathe to challenge the Congress ever since, and it will not seriously attempt to do so in the future.
"It's time for a little perestroika on the Potomac," David Schoenbrod writes at the end of his book, and few would disagree. Despite his compelling analysis, Schoenbrod has surely failed in persuading the Supreme Court to bang the gavel on delegation. He may take solace, though, in having brought ordinary readers closer to picking up pitchforks. That, in the end, is how perestroika happens.
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