Ben Sasse is Half-Right About Congress' Excessive Delegation of Power to the Executive and the Courts

He's right that Congress has delegated too much power, but wrong about the reason, which is not that Congress is afraid to legislate but that it legislates too much.

|The Volokh Conspiracy |

Republican Senator Ben Sasse is one of the more thoughtful members of Congress. In his much-discussed opening statement at the Kavanaugh confirmation hearing, yesterday, Sasse took Congress to task for abdicating its responsibilities and delegating too much power to the executive branch and the courts:

In our system, the legislative branch is supposed to be the center of our politics….

[I]t's not. Why not? Because for the last century, and increasing by the decade right now, more and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent. The legislature is weak. And most people here want their jobs more than they really want to do legislative work. And so they punt most of the work to the next branch….

And so, what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the Secretary or the administrator of bureaucracy X, Y, or Z to make law-like regulations. That's mostly what we do here. We go home and pretend that we make laws… No, we don't…

But the real reason, at the end of the day, that this institution punts most of its power to executive branch agencies is because it is a convenient way for legislators to have… to be able to avoid taking responsibility for controversial and often unpopular decisions. If people want to get reelected over and over again—and that's your highest goal—if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy… it's not a good life but it's a pretty good strategy for incumbency.

And so, at the end of the day, a lot of the power delegation that happens from this branch is because the Congress has decided to self-neuter.

It is indeed true that Congress has delegated enormous power to the executive branch and the courts, and that this raises troubling questions. In some cases, the desire "to avoid taking responsibility for controversial and often unpopular decisions" is likely part of the motivation. But the most fundamental reason for this pattern is not that Congress refuses to "make laws" or that it seeks to avoid controversy, but that it makes far too many laws. Despite constant laments that Congress is gridlocked and supposedly unable to pass important legislation, in reality it does so all the time. Just in the last decade, Congress has enacted a massive bailout of financial institutions, a large stimulus bill, the Dodd-Frank Act, Obamacare (the biggest new federal health care program in decades), and—most recently—the biggest new overhaul of the federal tax system since 1986. All of that is in addition to major increases in spending on entitlements, defense, and other matters. Most, if not all, of these major new laws were both controversial and unpopular in many quarters. If that's a, weak, impotent, and "self-neutered" Congress, I fear to see what an active and virile legislative branch might look like!

When the federal government regulates and spends on such a vast scale—to the point where almost every aspect of the economy and society is subject to at least some substantial federal control—Congress has little choice but to delegate extensive discretion to the executive branch, and to leave a many ambiguities for resolution by some combination of bureaucrats and federal judges. Congress also has little choice but to allow the executive enormous discretion about which lawbreakers to pursue (and which to ignore) when it passes far more legislation than any administration can possibly hope to fully enforce. Congress simply doesn't have the capacity to make all of the difficult tradeoffs in advance, or even to foresee what many of them might be.

If we want a Congress that avoids massive delegation to the executive and leaves relatively few ambiguities for later resolution by bureaucrats and judges, the only realistic way to accomplish that is for them to legislate less, not more—and probably to repeal a substantial proportion of the legislation currently on the books. Contrary to the hopes of some on the right, the problem can't be fixed merely by eliminating or curtailing judicial deference to executive agency decisions, though such a change is still desirable on other grounds.

It may well be that most Americans simply aren't willing to bite that bullet. Perhaps we are not ready to forego federal regulation of any substantial proportion of the activities it covers now. But if so, we shouldn't complain that Congress gives too much power to the executive branch or to the courts, or that it refuses to make all the hard choices required by the laws it passes. These problems are largely unavoidable byproducts of the vast growth of federal spending and regulation over the last century.


NEXT: Welcome to the Era of Late Socialism

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  1. I think you’re both right.

    Congress should legislate better, including making hard compromises about serious issues.

    The Courts especially the Supreme Court should exercise more oversight of both the lower courts and the Administrative agencies including striking hopelessly muddles laws.

    1. Unfortunately, just as you can’t buy votes with balanced budgets and smaller government, you also can’t buy votes with more responsible and more transparent government. Like it or not, we’ve got the kind of government we’ve asked for and probably deserve.

  2. Sass is right as far as he goes. As important is the fact the federal govt has overrun the restraints placed on it by the constitution. Federalism is a real thing.

  3. The bailout, stimulus, and Dodd-Frank were about preventing the total collapse of our economy. What would Somin have Congress do? Nothing? And just let our economy collapse? Oh, you agree that Congress should do something, you just think it should be a different something? Welcome to the club. The question is never whether Congress will act perfectly, but whether its acting is better than the alternative of not acting. Congress is not perfect. But neither is anything else in life, period. It was not perfect that we were facing the largest financial crisis since the Great Depression either. Congress takes imperfect action to mitigate problems that exist in an imperfect world. Deal with it.

    Obamacare was equally important. There are many people who simply die unnecessarily because they can’t access healthcare. You might be some sort of monster and think that this is a problem that is acceptable to leave unsolved, but not me. Obamacare is not perfect. We still need to move to a system that actually guarantees healthcare to all. But healthcare for more is still progress.

    I guess that Somin is really devoted to his ideas if he would let people die unnecessarily. But the rest of us should avoid worshipping ideas and subordinating the well-being and even survival of people to them. In fact, that was the problem with communism, a system that Somin so detests. That he would emulate the main flaw of communism, albeit in pursuit of a different set of “perfect” ideals, is ironic.

    1. there is nothing in your post I can take serious.

  4. This reminds me when some Republican lawmaker wanted to change procedures so that every bill presented tor a vote was required to specify where the US Constitution gave Congress the power to implement it in law. It drew a lot of jeers, unfortunately.

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