Checking excessive delegations through judicial review and political reforms

|The Volokh Conspiracy |

In previous posts about my forthcoming article, I have explained the benefits individual members of Congress realize through delegation and have also argued that such benefits unravel the "collective Congress" by separating the interests of lawmakers from Congress as an institution. This dynamic means that the traditional competition between the political branches will not prevent excessive delegation.

The failure of structural protections suggests perhaps the time has come to revisit judicial enforcement of a more robust non-delegation doctrine. The court reached a similar conclusion when it enforced federalism limits on Congress's power to commandeer the states. See New York v. United States; Printz v. United States.

For instance, it does not matter that Congress ostensibly "gives away" power when delegating. The limitation against delegation exists not to protect Congress, but rather to ensure that laws are passed through a collective and representative process that preserves individual liberty. Members of Congress can reap substantial benefits from delegating discretion to administrative agencies. Judicial enforcement of the non-delegation doctrine may thus be important to ensure individual congressmen exercise only collective legislative power and do not impede the executive power.

Moreover, the creation of open-ended administrative discretion is largely tolerated because the court assumes that the executive will exercise that discretion. Yet it turns out that such delegations also allow components of Congress to exercise executive functions. Delegation to agencies can function as a self-delegation to parts of Congress in contravention of the text and structure of the Constitution. See INS v. Chadha.

In addition, the court often intervenes to ensure proper political accountability. Citizens should be able to hold the president accountable for execution of the laws. Yet influence by members of Congress, often invisible to the average person, frustrates the proper channels of political responsibility.

All of these observations support more probing judicial review. This may not be forthcoming, but even occasional judicial invalidation of a statute for delegating legislative power may persuade Congress to take this obligation more seriously.

Which brings me to why it is in Congress's interest to rein in delegations. Although both legislators and administrators have incentives for continuing open-ended delegations, members of Congress also have an interest in restoring collective lawmaking power. Delegation may expand the power of individual members of Congress, but it likely expands the power of the executive branch at a much faster rate. The more Congress delegates, the more substantially the executive branch can take over entire areas of policy. Presidents since Ronald Reagan have responded to delegated authority with greater (although far from complete) centralization and control.

Congress always faces collective action problems when trying to legislate, but in recent years polarization and gridlock have further diminished the likelihood of legislation. See Michael Greve & Ashley Parrish, Administrative Law Without Congress. To the extent that members must have some credible threat of action (legislative or non-legislative) to influence agencies, the ineffectiveness of Congress may reduce members' formal and informal influence over administration.

Delegation may turn out to be a kind of prisoner's dilemma for lawmakers. Delegation can expand individual power, but at the expense of Congress as an institution. Individual members may yield greater benefits from exercising robust collective lawmaking power, but they can be more certain about taking a smaller benefit by delegating and influencing administration for their particular interests. In the long term, this may further weaken Congress as an institution—individual members of Congress may feel the only way to gain short-term influence and power is to relinquish even more formal lawmaking power.

Ultimately, restoring the values behind the non-delegation principle depends on Congress. The court should provide greater enforcement—both in direct challenges and through the interpretation of statutes—but the real problem begins in Congress and must be addressed there. Leadership should consider what reforms would bolster the collective lawmaking power. There needs to be a public and persuasive account of how Congress's institutional power can benefit individual members.

At this stage of development in the modern administrative state, many consider thinking about the non-delegation principle to be quixotic. Indeed, past decisions of the Supreme Court make it difficult to predict a robust revival. Yet lawmaking by collective legislatures forms the foundation of republican government and is an essential separation of powers principle. If we cannot rethink delegation, we are simply resigned to an administrative law of the second-best, trying to constrain discretion and create new checks and balances that never quite get at the problem.