Administrative Law

Delegation and Time

Sometimes it is not the breadth of legislative delegation that is a problem, so much as it is the age (and potential obsolescence) of such delegation, and that's something Congress should learn to address.

|The Volokh Conspiracy |

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.

NEXT: More on the Michelle Carter Case and New Legislation

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  1. Wouldn’t this time lag problem apply to the hypothetically more specific content of a statute as well?

    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.

    So it’s the definition of air pollution, not the lack of specific statutory rules that you see as the source of the problem? But wouldn’t a more specific statute still apply, unexpectedly, to greenhouse gases once they fit the definition?

    If so, isn’t it in fact wiser to allow for the flexibility comes from delegating some judgment to an agency?

    1. No, the problem here is not the definition of air pollution, but the application of provisions designed to address one sort of problem to a different sort of problem. Congress is capable of drafting different types of provisions to address different sorts of air pollution problems, as it did with acid rain and ozone depletion. It never did so with greenhouse gases.

      1. That happens all the time, and not only in delegation circumstances. For instance, Section 1983 was originally about a private right of action for civil rights violations, and nowadays is used for all sorts of torts that its drafters never contemplated. So what? The language of the statute is broad enough, and Congress always has the power to cut it back if it feels it goes too far.

        I am all for a delegation doctrine where Congress sets no standards at all, but as long as Congress grants sufficient guidance, the fact that the statute then gets applied to other areas is not a problem at all.

        If conservatives really want the CAA to not apply to CO2, run for office on that platform, convince enough Americans that it is right, and amend the statute.

      2. Still trying to understand the point here. It sounds as if the problem is Congress’ failure to act on greenhouse gases, combined with an inadvertent delegation of that issue to the EPA.

        Is that right?

  2. Here in Texas, we have Sunset. To some degree, at least, it should tend to catch up with problems of stale delegation. The Texas Sunset Commission is an agency of the Legislature (for a federal parallel, think Government Accountability Office). Most executive branch agencies are subject to Sunset review, in most cases on a 12-year cycle, according to the authorizing legislation which established or reauthorized the agency. Any agency subject to Sunset, if not re-authorized, it terminated. In time since the Sunset Commission was established in 1977, 39 agencies have been abolished completed, and 46 others have had their functions transferred to other agencies, new or existing. The agency’s website https://www.sunset.texas.gov/about-us/frequently-asked-questions#5 says that there are “about 140 agencies” which fall within its authority, so getting rid of 80+ is a pretty good percentage. At first glance, a 12 year cycle might seem pretty aggressive — there are some federal acts which run on 20-year cycles, aren’t there? — but perhaps once you get thru the first round of cleaning out the swamp, it gets a little easier the second time thru?

    1. …and that’s how Texas wound up accidentally allowing anyone to be a plumber: https://loweringthebar.net/2019/05/texas-repeals-plumbing-code.html

      (Which is likely to be a good thing, but probably shouldn’t happen “accidentally”.)

      1. But not necessarily a good thing should you buy a house with plumbing (or electrical wiring) that has been installed by an incompetent technician.

        1. Buying a house with incompetently-installed plumbing is a problem. However in practice, it is not a problem that state licensing is particularly good at solving. Lots of incompetent plumbing work is performed by plumbers who nevertheless jumped through all the state’s licensing hoops.

          More to the point, it’s not a problem that needs a state solution at all. Get your house inspected on your own and if the plumbing’s no good, don’t buy the house.

          1. If it were only so simple. Some problems are hidden in the walls, and only emerge over time, especially in the absence of that other government tyranny – plumbing, electrical, and building codes. And then there is the issue of the competence of home inspectors and the fine print in their disclaimers.

            1. Not to mention the issue of finding a competent plumber when a problem comes up later.

              You seem to be saying that licensing is an imperfect process. I’ll buy that, but the issue is whether it’s better than letting anyone hang out shingle, or might even be improved.

  3. “It might be possible to craft a new nondelegation doctrine that is sensitive to the problem caused by broad delegations cemented within obsolete statutes,”

    From a standpoint of democratic legitimacy, that would actually manage to be worse than the present situation. There’s at least some kind of constitutional basis for declaring laws unconstitutional, but to declare them expired?

    1. You wouldn’t declare them expired but rather taking on too much new stuff that wasn’t contemplated by the elected legislature of the time.

      This common carrier stuff for the Internet might be a good example, taking a 1970s telephony concept and stretching it to a science fiction product many times larger. Furthermore, Congress appearing to want to hide and avoid a vote and relying on the executive branch is not working in favor of the current doctrine the article questions.

  4. The fundamental problem is that the Supreme Court seriously screwed up in INS v. Chadha (1983), as ably explained by Justice White in his dissent.

    Indeed, not only should explicit “one-House vetoes” written into law be constitutional, but all instances of an agency using delegated legislative power should always be contingent on neither House making a timely objection to that use of their power, whether the delegating legislation included such a provision or not.

    The idea that a statute can allow the legislative power to be used over the active objection of the body in which the Constitution vests those powers is the core problem of current separation-of-powers doctrine. Once that is fixed, the risk of abuse of delegated authority become minimal.

    1. Nonsense.

      Why should one house have veto power over an exercise of power authorized by the entire Congress and the President?

      1. Why should one house have veto power over an exercise of power authorized by the entire Congress and the President?

        Congress does not have the power to make law without the consent of both Houses and the President. How, then, can it possibly delegate such a power to anyone else? Any act authorizing a violation of the Constitution is inherently null and void; the only question is if a saving construction shall be used to make such an act constitutional, and what form the saving construction shall take.

        The most obvious answer is to not save such statutes. Congress has no power to delegate its power to make law; it cannot be Necessary and Proper to avoid the explicit requirements of the Constitution as to how laws are made. Shall we rest here, or move on?

        The current choice of the Court, the “intelligible principle” doctrine, is ridiculous. It is both toothless (as White pointed out in his dissent, listing examples upheld by the Court of “intelligible principle[s]”) and entirely an extraconstitutional interpolation.

        On the other hand, asserting that any use of the legislative power to make law requires the consent of each House of Congress and the President to take effect is to merely restate the Constitution, while putting an actually-effective check on the discretion of anyone delegated such power. If a single House passes a resolution objecting to such a use, it has clearly refused its consent, and thus the inherent Constitutional requirement for the use of the legislative power has not been met.

        1. Any act authorizing a violation of the Constitution is inherently null and void;

          Who’s talking about unconstitutional acts?

          1. The answer was in the very two sentences before that one. Since Congress does not have the power to make laws without a procedure that secures the consent of both Houses and the President, it cannot, by delegation of its legislative power, enable anyone else to make a law by a procedure that does not secure the consent of both Houses and the President. Thus that such “an exercise of power [is] authorized by the entire Congress and the President” is irrelevant; that authorization is unconstitutional.

            The question is how to make it constitutional. And the only way to actually do that is require that each enactment using the delegated power secure the consent, even if implicit, of both Houses and the President. The previous attempt by the courts (“intelligible principle” doctrine) has a number of blatant defects, made more obvious by actual practice since it was formulated in 1928.

    2. Congress should create legislative-only agencies, with rulemaking-only authority and no enforcement authority. And other agencies with enforcement authority but no rulemaking authority.

      The rulemaking-only agencies could then very likely easily be vetoed by Congress without any separation-of-powers issue.

      Today’s hybrid agencies make the law, issue orders to enforce the laws they make, and also render punishment. Which all sounds quite unconstitutional to me.

      1. This doesn’t sound that far from making regulatory agencies advisory and forcing Congress to vote on regulations to enact them.

        Sounds good to me.

  5. Currently, to get a new regulatory statute enacted requires an exceptional alignment of political power, with the party desiring the statute largely in control (or near-control) of both houses and the presidency. That doesn’t happen often. Also, much of the regulation on the books memorializes moments where some crisis made a special impression on the political process—some instance where a public need for the regulation was shown vividly. Thus, the regulatory apparatus of the nation reflects a slow accumulation of many exceptional instances, instances where political happenstance and moments of unusually edifying experience came together.

    It took a lot of time and experience to put that structure in place. It could not be updated or replaced during short intervals. The practical political process could not cope with that, any more than it could have produced that structure over a mere decade or two.

    Thus, as a practical matter, unless what Adler proposes is a regulatory life for a statute on the order of 75–100 years—which does not seem to be what he has in mind—what he proposes amounts to a fairly swift extinction for regulatory law. Encompassed within that process would be disruption of all the reliance advantages which a stable regulatory environment promotes. I wonder if that could possibly be Adler’s intent, or whether he just has not thought this through.

  6. Wouldn’t these difficulties be more easily overcome by simply allowing the current APA process as-is but requiring an up or down vote by congress before any regulation takes effect. That is Congress can draft broad laws which administrative agencies would use to draft regulations taking public comments into account but no one would be subject tipoffs any law not passed IAW normal constitutional procedures.

  7. The problem could be solved very simply. Require Congress to take an up-or-down vote, perhaps every quarter, on every regulation posted to the federal register that affects the public (e.g. isn’t an internal regulation of federal employees or property but requires ordinary people to do or refrain from doing something.) Congress could them, if it wants, amend the routine ratifying act to exclude particular regulations or doesn’t like or wants to undergo further scrutiny. There! Problem solved.

    That’s the obvious solution to Chadha. The solution to Chadha was not to let the Executive do whatever it wants unless the entire Congress is able to override an executive veto. The obvious solution to Chadha is to let the Executive do nothing unless and until Congress permits it.

    1. Requiring Congress to vote on each individual regulation would be unmanageable. A routine quarterly omnibus bill covering all regulations posted in the previous quarter would be very doable.

    2. This sounds silly to me.

      A law is passed and signed authorizing some agency to enact regulations governing some activity.

      OK. That’s the law. Now you want to give either House, acting on its own, the authority to effectively repeal that law. That makes no sense.

      Congress already has the power, if the President agrees, to repeal or amend an existing law. That’s all that’s needed.

  8. All of this assumes Congress, in its current state, is capable of drafting and passing a reasonable piece of legislation on any complex problem, especially one that requires a certain degree of technical or scientific understanding.

    1. 1. Was Congress ever capable of that? I find evidence of that somewhat lacking.

      2. If they aren’t, they should refrain from legislating in such areas at all.

  9. I see you mention it in your paper but not in the post — the FCC’s attempt to find authority to regulate ISPs in the 1933 Act, or even in the Telecommunications Act of 1995 would be funny if it hadn’t led to so much fruitlessly expensive lawyering and, somewhat more controversially, delayed internet infrastructure investment. I challenge anyone but a lawyer to read Section 702 of the Telecom Act and show that it intends to give the FCC authority to regulate ISPs. And while Section II of the 1933 Act was arguably relevant, the spectacle of having the FCC pick and choose *which* aspects of Title II regulation they would enforce and which they would (perhaps) temporarily abstain from enforcing shows just how desperate (and unhinged, literally) they had become.

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