Administrative Law

Reviving Congressional Reauthorization

A Symposium at The Regulatory Review engages with "Delegation and Time," and the question of whether Congress is capable of addressing nondelegation concerns.

|The Volokh Conspiracy |

In "Delegation and Time" (forthcoming in the Iowa Law Review), Christopher Walker and I argue that one of the more important, yet overlooked aspects of delegation is the passage of time, and suggest that the legislative branch (as opposed to the judiciary) may be best suited to address such concerns through greater use of mandatory reauthorizations and sunset provisions.

This week, The Regulatory Review is sponsoring an online symposium discussing our paper and the implications of our arguments. The symposium features comments from a wide range of administrative law experts.

Thus far, the series includes the following:

Additional essays will be posted over the next few days. These will include:

  • Delegation, Time, and Congressional Capacity by Richard J. Pierce, Jr., George Washington University Law School;
  • Punishing the Innocent by Richard W. Parker, University of Connecticut School of Law;
  • A Reply to Our Interlocutors.

I'll add those links when they are available. They will also be available here.

We appreciate the time and effort these scholars took to engage with our work and look forward to continuing discussions about these issues. I"ll also be speaking about the paper at the Second Annual Legislative Branch Review Conference: Modernizing the First Branch, on March 12 in Washington, DC.

 

 

 

 

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  1. Just commenting immediately—and recklessly—without having read the article (we all do it I mean come on!), I dont see how the timing issue would do much to solve what seems to be the biggest issue with delegation: the level of discretion of agencies over a broad swathe of subject matter.

    If congress has an organic statute telling any agency to make any laws in area x consistent with the public interest, but there is a reauthorization for this agency needed within 3 years (or even months!) the nondelegation problem, as I see it, would still exist during this period. Maybe, the reauthorization requirement would deter agencies from overstepping their bounds, but are our constitutional liberties to rest on bureaucratic grace and prudence?

    1. I tend to agree; While sunset provisions are a good idea on their own, and it might even make sense to require a higher hurdle to reenact a law than to enact it in the first place, (Because by the time you’re reenacting it, if it’s a good law there should be agreement, only bad laws lose ground over time.) they don’t really solve the delegation problem.

      Threats to terminate an agency or a whole area of law are not a plausible response to an agency taking liberties with that law, unless the agency/law wasn’t really needed in the first place.

      In which case it shouldn’t have been created in the first place.

  2. All laws should expire unless you can pass them with a supermajority. Force the elected to re-evaluate things the population can barely agree on, in case it was just a transient bare majority.

  3. Congress is the most political branch of the government. I think it would take an extraordinary group to choose not to enact permenant legislation whenever they have the chance. The electorate seems to want this as well.

    A good idea but, barring a more active judiciary and constitutional amendment, doomed to failure.

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