The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Most proponents of the nondelegation doctrine worry that Congress delegates too much decisionmaking authority to administrative agencies. The conventional critique of delegation thus emphasizes the breadth of discretion agencies are given to issue rules, define offenses, and set broad policy priorities. These sorts of choices are inherently legislative, the argument goes, and are thus of the sort that should be made by the people's elected representatives.
A central concern about broad delegation is the resulting democratic deficit of agency decisionmaking. The specific concern is that the hand-off of broad policymaking authority transfers the power to enact normative preferences into positive law from the people's elected representatives to unelected, and therefore less democratically accountable, administrators. Yet as some degree of delegation is inevitable (and has been with us since the earliest days of the Republic), the question inevitably becomes "how much is too much" – and this is a question the courts have seemed unwilling (if not unable) to answer.
The persistent focus on the scope of legislative delegations has caused commentators to overlook another relevant dimension of delegation: Time. Particularly in an era of legislative inaction, the delegation of authority to administrative agencies is not occurring in the present, but in the past. When agencies wield broad regulatory power, they often rely upon authority delegated to them in years past, by a prior Congress, and they regularly rely upon legislative measures that are increasingly obsolete.
That agencies routinely rely upon past delegations to administer, implement and enforce their programs exacerbates delegation's democratic deficit. Were agencies exercising authority recently delegated authority, one could argue that such delegations reflect a contemporary judgment of the desirability of delegating broad authority to a particular agency to address a particular concern, perhaps due to the technical complexity of the underlying subject matter. As things stand today, however, agencies often rely upon age-old delegations of authority to address contemporary concerns.
Consider the Clean Air Act (CAA) and its application to greenhouse gas emissions. Congress enacted the CAA's basic architecture in 1970, and made substantial revisions in 1977 and 1990. As originally constructed, the CAA focused most acutely on localized air pollution. What courts have identified as the "heart" of the Act are those provisions authorizing and enforcing ambient air quality standards in metropolitan areas. Relatively little of the CAA's core architecture concerned interstate air pollutants. Global climate change, in particular, was not yet a serious concern within Congress when the CAA was passed and amended, and there are no CAA provisions drafted with concerns like global climate change in mind.
Nonetheless, seventeen years after Congress last revisited the CAA, in Massachusetts v. EPA, the Supreme Court concluded that the Act's definition of "air pollutant" was broad enough to encompass greenhouse gases, thus conferring upon the EPA the authority to address climate change. Whether the Court was correct to interpret the CAA in this fashion, this decision set in motion a series of regulatory initiatives that Congress never contemplated, let alone endorsed, and forced the EPA to retrofit a twentieth-century statutory regime to address a twenty-first century problem. The resulting mismatch between the CAA's architecture and the nature of both greenhouse gas emissions and resulting climate change has confounded the EPA and the courts since (see, e.g., UARG v. EPA).
The temporal lag between legislative delegation and the utilization of delegated authority raises distinct concerns about whether such delegation is consistent with democratic governance. When decades pass between the enactment of statutes delegating authority to agencies and the exercise of that authority, there is a risk that the delegated authority will be used for purposes and in ways that the enacting Congress never considered. This may lead to situations where Congress has not provided the proper tool for the problem the agency is addressing, or where agencies are left to try and force the square pegs of contemporary problems into the round hole of previously delegated authority, as has occurred with climate change.
This problem of time is largely overlooked in debates over delegation. Jurists, policymakers, and commentators have not considered how the passage of time accentuates the concerns motivating calls for a nondelegation revival and how the temporal dimension of the problem might require a different set of reforms – or so Chris Walker and I argue in our draft paper "Delegation and Time."
It might be possible to craft a new nondelegation doctrine that is sensitive to the problem caused by broad delegations cemented within obsolete statutes, but courts have shown little awareness of this dimension of the nondelegation problem, let alone what a doctrine might look like that could address it. So perhaps courts are not the place to look for a solution.
In our paper we consider how Congress could create incentives for more regular revision of those statutes that delegate authority to regulatory agencies. Specifically, we suggest that Congress could force itself to engage in more regular reauthorization of relevant programs, summarize examples of where this has actually occurred, and consider the implications of more regulator reauthorization on existing administrative law doctrines. In effect, we suggest that one way to address delegation concerns – and, in particular, to address the problem of time – is to find ways to make Congress legislate again, and that is something that Congress itself should be able to do.