Can candor help curb the delegation of power to administrative agencies?

|The Volokh Conspiracy |

The delegation of power from the legislative branch to administrative agencies is pervasive. Insofar as some analysts and academics believe this is a problem, the question is what to do about it. Some of us have endorsed the idea of legislative reforms to curb delegation, such as the REINS Act, though the enactment of such reforms is quite unlikely. Over at the Liberty Law Forum, some of us also recently debated an alternative proposal by Ilan Wurman.

In "A Modest Proposal for Reforming the Administrative State," Wurman suggests that the first step toward curbing excessive delegation of legislative power is to more candidly admit that such delegation takes place. More specifically, he argues that if current doctrine acknowledged the reality of such delegation, it would facilitate other reforms that would enable the legislature to exercise greater control on administrative agencies. Wurman writes:

To accept the reality of the administrative state, we must accept the reality of legislative delegation. Does it follow that we must also accept the serious blow modern administration deals to the separation of powers? I do not believe it does. Indeed, by accepting delegation, I contend that we not only will recover a large measure of separation of powers, but we can also mitigate the harms to republicanism from delegation itself. . . .

If we accept delegation and thus that the administration exercises all three functions of government, each constitutional branch of government can control the function of administration corresponding to its own constitutional function. Congress can control the legislative functions of administration (rulemakings, for example); the President can control the executive functions (enforcement activities); and the courts can control the judicial functions (a subset of the adjudications that agencies conduct). Modern doctrine precludes this approach because, to repeat, it pretends that the administration is only executing the law, and so it is impossible to differentiate the functions in this way.

I am skeptical, to say the least. In my response, "An Administrative Fairy Tale," I challenge Wurman's premises and his conclusions. In short, while I believe candor is valuable, I do not believe Wurman's suggested doctrinal shift is necessary or sufficient to produce the changes he seeks (and I question whether some of his desired changes are even worthwhile). An excerpt:

Wurman's Liberty Forum essay argues that if this reality were laid bare-were the pretense of non-delegation dispelled like the pretense of the emperor's fine clothes-it would be easier to restrain the administrative power. In a sense, the truth will set us free. A more candid doctrine, he suggests, is the first step toward restoring the constitutional separation of powers and mitigating the harms to constitutional republican government wrought by the modern administrative state. . . .

This is not the first call to recognize the reality of legislative delegation. Justice John Paul Stevens, writing separately in Whitman v. American Trucking Associations (2001), called for "frankly acknowledging" that federal statutes delegate "legislative" authority to federal agencies. According to Justice Stevens, "it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is 'legislative power.'" Justice Stevens' call for candor was just that. Nothing in his opinion (or the rest of his jurisprudence) suggests that such a revelation would alter the underlying operation of modern government.

Wurman, on the other hand, maintains that a more candid judicial doctrine would effectively overrule other Supreme Court decisions (such as [INS v. Chadha]) and thereby facilitate other needed reforms. Perhaps; but he offers little beyond ipse dixit to suggest why this is so. Expressly accepting the reality of broad delegations of legislative power is not self-evidently necessary or sufficient for much of what he proposes. Calling the delegation of legislative power by name may be more satisfying and sincere, but it is not the sort of thing from which legal revolutions are made.

Additional commentary was provided by Ohio State's Christopher Walker and Iowa's Andy Grewal. Wurman was then given the last word. I'm still not convinced.