The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.