The Volokh Conspiracy

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Volokh Conspiracy

Can We Make Congress Legislate Again?

Tools exist to modify the incentives for legislative action, and Congress could deploy some of those tools itself to encourage more regular reauthorization and modernization of federal regulatory programs.


Congress does not seem to legislate much anymore. One consequence is that federal agencies are left trying to address contemporary problems under authorities delegated by Congress years—and in many cases decades—ago. Depending on the nature of the program, this can mean that agencies are forced to use obsolete statutory authorities that may not reflect contemporary knowledge or understanding of the relevant issues, let alone contemporary political support. And because the legislative process has a strong status-quo bias, it can be difficult to update federal law on a regular basis to address obsolescence concerns.

In the environmental context, for example, there has been relatively legislative action over the past twenty years. Other than the Toxic Substances Control Act, none of the major environmental statutes has been meaningfully revised this century. (There have been minor revisions to select provisions of the Safe Drinking Water Act and CERCLA, aka "Superfund.")  But it's not as if environmental problems, and our understanding of such problems, has stood still. In some cases, the Environmental Protection Agency (EPA) is able to address contemporary problems with extant authorities. In others, however, extant authorities do not cut it.

A related problem is that delegations of authority enacted decades ago remain on the books long after the problems they were enacted to address have passed. Such delegations remain on the books to be deployed in new circumstances without legislative approval. So, for instance, President Trump invoked the International Emergency Economic Powers Act in 1977 (IEEPA) to impose tariffs on Mexico in response to an alleged illegal migration
"crisis." Whether or not one believes there is an "emergency" at the southern border, no one can seriously maintain that this is the sort of problem Congress sought to delegate authority to the President to address with the IEEPA, yet the authority exists, and is difficult to repeal.

Many of the problems cause by obsolete statutory authority would be addressed were Congress willing or able to revisit such laws on a more regular basis. Is such a thing conceivable? Perhaps, or so Chris Walker and I argue in our paper "Delegation and Time."

Legislatures at all levels of government have found that one way to induce more regular legislative engagement and revision of existing statutory programs is through various forms of temporary legislation—legislation that expires, sunsets, or reverts to a particular baseline if not regularly reauthorized or re-approved by the legislature. As experience across a wide range of subject areas shows, meaningful reauthorization requirements can induce legislative action, which can help address concerns about statutory obsolescence as well as concerns about democratic legitimacy.

Enacting legislation is difficult. To legislators, moving legislation is "costly." Thus it is often preferable for legislators to leave things be than to try to modify or revise existing laws. Among other things, this may help legislators avoid uncomfortable votes over whether to grant agencies the authority to embark on new initiatives. Yet if the alternative to the legislature's failure to act is not making do with an outdated law, but seeing a law expire completely, or revert to a potentially undesirable baseline, legislators may have greater incentive to act. Indeed, this may explain why even recent Congresses, which have been generally loathe to enact much substantive legislation, have been able to act to reauthorize farm programs, the ExIm bank, and other programs that would otherwise expire.

In "Delegation and Time," Chris Walker and I argue that Congress should explore greater use of such mechanisms as a means of incentivizing more regular reauthorization of federal programs, regulatory programs in particular. Among other things, this would provide a greater opportunity for Congress to update existing law to account for changes in scientific and technical understanding or shifts in popular opinion. Amending or modifying legislation that is going through the legislative process anyway is far easier than trying to enact a reform bill from scratch.

While we believe that such tools could be useful across a wide range of contexts, we resist calls for an across the board "sunset" of existing grants of authority, such as has been used in some states, because we are not sure that this creates the best baseline for all programs, either due to reliance interests or specific technical considerations. It is unlikely that one-size-fits-all, but some form of temporary legislation or incentivized reauthorization is likely to be appropriate to most federal regulatory programs.

The larger point is that we should not view the legislative process, and the incentives to legislate, in static terms. Many variables affect the costs of legislative action, including many variables that are within Congress's control. Just as rule changes making it easier or more difficult to legislate affect the likelihood that Congress will enact a new law, rule modifications or prior enactments that shift the costs and benefits of the status quo as compared to potential legislative alternatives affect the chance that Congress will act as well. If the failure to act means the end of a program altogether, legislators representing affected interests may be more willing to come to the table and negotiate reforms.

If we want Congress to legislate more often—even if only to modernize and revise the laws on the books—we need to think about how to alter the incentives that Congress faces, and recognize that not all of these incentives are best thought of as political. Some are a function of institutional constraints and prior enactments. And if Congress would like to reassert its own authority, particularly vis-a-vis the executive branch, more regular legislation would accomplish this end, and there are tools Congress could use to make this more likely to happen.