Revisiting the non-delegation principle: How delegation diminishes the collective Congress

It is great to be guest-blogging at the Volokh Conspiracy about my article, "Administrative Collusion: How Delegation Diminishes the Collective Congress," 90 N.Y.U. L. Rev. (forthcoming 2015).

In the modern administrative state, Congress regularly legislates in open-ended terms, leaving executive branch agencies to fill in the gaps and exercise what for all practical purposes looks like lawmaking power. The Supreme Court and most scholars accept that such delegations are essential, or at least that the issue has been settled in favor of significant delegation.

Nonetheless, Article I vests all legislative power in Congress, and as Justices Clarence Thomas and Samuel Alito recently highlighted in the Amtrak case, the non-delegation principle has an essential connection to separation of powers and individual liberty (Department of Transportation v. Association of American Railroads).

In this article, I introduce the concept of the "collective Congress," which provides a new way of thinking about the problem of delegation at its source. I explain that judicial indifference to the non-delegation doctrine depends in part on a strong conventional assumption that Congress relinquishes power when it delegates authority to agencies. Delegations constitute a loss for Congress, because Congress as a whole gives up control of policymaking to the executive branch. The court thus relies on the political rivalry between Congress and the executive to prevent excessive delegations. If Congress wants to give up its power, the court will not stand in its way. The court's non-delegation doctrine currently asks only whether a statute provides an "intelligible principle" to guide the agency, and nearly all standards pass this flaccid test.

I argue that the assumption that delegation is a zero-sum game between Congress and the president is mistaken, or at least incomplete in two fundamental ways. First, delegation benefits individual members of Congress and creates ongoing incentives for delegation to agencies. Legislators may prefer to collude and share administrative power with the executive. Second, this dynamic unravels the structural checks on excessive delegation, because it provides a mechanism for individual lawmakers to exercise power outside of the "collective Congress."

I will first explain how delegation can benefit individual members of Congress and take up the "collective Congress" in my next post.

Courts and legal scholars generally treat Congress as a singular institution, skimming over or ignoring what political scientists have long understood—that individual members of Congress realize significant benefits from delegation.

For example, delegation reduces the costs of legislating by pushing hard questions off to the agencies. It may also allow members to avoid political responsibility for difficult choices. But perhaps most important, members can realize individual benefits outside of the legislative process. Delegations create administrative discretion that members of Congress can influence through a variety of formal and informal mechanisms. They can satisfy interest groups and serve constituents by intervening in the regulatory process. Members can "rescue" particular groups or individuals from regulation through seeking waivers or exemptions.

Lawmakers can similarly influence administrative policy. This is common knowledge among Hill staffers and agency officials, even though examples rarely filter into the public. Consider what Sen. Al Franken said at a Senate hearing when explaining that the Consumer Financial Protection Bureau was accountable to Congress. He exclaimed, "I've gone to CFPB on mortgages, rules on mortgages in rural areas, and gotten them to change their rules. So I can go to them all the time and get changes." The argument that CFPB responds to Congress was really an argument that the CFPB responds to Franken. This is just one example that acknowledges a pervasive dynamic.

Although the conventional view correctly identifies how delegation shifts power to executive agencies away from Congress as a whole, it fails to account for the benefits individual members get from delegation. Legislators may be able to exercise more individual power by influencing administration than by working to enact statutes. Particularly in an era of party polarization and long periods of congressional gridlock, the incentives for members to take a piece of administration only increase.

In my next post, I will explain how the influence and control exercised by individual legislators fracture the "collective Congress" created by the Constitution and the particular way this undermines the separation of powers.