Prof. Richard Pierce Responds to "Delegation and Time"

On delegation, time, and congressional capacity.

Earlier this year, the Iowa Law Review published my article with Christopher Walker, "Delegation and Time." In that article, we argued that debates over the delegation of authority to administrative agencies pay too little attention to the temporal lag between the delegation of power and its use. We further discussed legislative strategies Congress could use to address concerns about excessive delegation. I discussed the article in this post, and it was the subject of this symposium at The Regulatory Review.

Professor Richard Pierce of the George Washington University School of Law has penned a response, "Delegation, Time, and Congressional Capacity," that is now posted on the Iowa Law Review website. Here is an excerpt from the introduction:

In Delegation and Time, Jonathan Adler and Chris Walker do an excellent job of introducing us to an important new way of thinking about broad congressional delegations of power. After reviewing the traditional arguments against broad congressional delegations of power rooted in concerns about lack of political accountability they note that broad delegations increasingly raise a serious temporal problem.

In their words, "broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that was wholly unanticipated by the enacting Congress or could no longer receive legislative support." They also note that this temporal "problem has taken on added significance in the current era of congressional inaction." Adler and Walker illustrate this temporal problem well by referring to the efforts of the Federal Communications Commission to use the Communications Act of 1934 to regulate the internet and the efforts of the Environmental Protection Administration to use the Clean Air Act of 1972 to mitigate climate change. Neither statute was enacted with those applications in mind and neither is well suited to the task.

I agree completely with the concerns that Adler and Walker express. I would expand them to include broad congressional delegations of power to the president that are being applied in ways that Congress never contemplated and would not support today. President Trump's use of the broad authority granted to the president in the Trade Expansion Act of 1962 and his use of the broad authority granted to the president under the National Emergencies Act of 1976 and over one hundred other "emergency" statutes illustrate Adler and Walker's temporal concerns particularly well. . . .

Adler and Walker urge Congress to respond to the temporal problem created by broad congressional grants of power by making greater use of sunset provisions in statutes that confer broad power on agencies.

In their view, including a sunset provision in a statute that grants broad power to an agency would change congressional incentives in ways that would induce Congress to re-evaluate the powers granted in such a statute and to revise them in ways that both update them and reduce the degree of discretion the agency has to interpret the statute in ways that Congress did not intend. Congressional actions of that type would address effectively both the political legitimacy and the temporal problems that are created by broad congressional grants of power to agencies. . . .

I agree with Adler and Walker on two points. First, it is important to change the incentives of members of Congress to encourage them to legislate. Second, it would be desirable if we could devise ways of changing those incentives to the extent required to induce Congress to reconsider and to periodically revise broad grants of power to agencies.

I disagree with them on one important point. I do not believe that adding sunset provisions to statutes that grant broad power to agencies would provide incentives sufficient to induce Congress to reconsider and to revise those statutes. Congress lacks the institutional capability to take those actions. In most circumstances, congressional impotence would create a situation in which broad grants of power to agencies expire and are not replaced with any statute that fills the resulting void in federal power to address important issues like air quality, climate change, immigration or regulation of the internet.

I know I speak for both of us in saying we appreciate the thoughtfulness and depth of Professor Pierce's response, and look forward to continuing this conversation.