Nondelegation

Prof. Richard Pierce Responds to "Delegation and Time"

On delegation, time, and congressional capacity.

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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.

NEXT: "Under Plenty of Perjury"

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  1. “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.”

    If a broad grant of power could not be legislatively replaced if it expired, doesn’t that say that it would have been democratically illegitimate for it to have continued?

    1. If a broad grant of power could not be legislatively replaced if it expired, doesn’t that say that it would have been democratically illegitimate for it to have continued?

      Not at all, as a practical matter.

      Even before the Senate became a black hole under McConnell it had all sorts of mechanisms that stifle democratic decision-making. That’s so even if you believe that the structure is democratically legitimate. It’s not hard to understand that even measures that would get a majority vote can be killed.

      1. Not only that, but politicians sometimes “want the issue”. For instance, we saw this recently with coronavirus relief, where even though there was broad agreement on a lot of things (obviously there were disagreements too, but there were still a lot of things that both parties agreed on) and they didn’t pass, in part just because both congressional Democrats and Republicans felt that it was beneficial to them electorally not to pass the relief and to posture instead.

        You really can’t read any conclusion about democratic decisionmaking from the isolated decisions of legislatures not to pass stuff. It’s perfectly possible for there to be both bipartisan agreement on something and reasons it doesn’t pass.

  2. I suggest a further problem with such delegations. Under the Constitution, Congress owns the delegated power at all times, even during a power’s delegation. But the President’s veto power means Congress has a far easier time handing the power off than getting it back.

    To avoid that, maybe Congress should take care never to delegate power by legislation, which Congress must later repeal by legislation—exposing it to the veto power. Use some other method, which keeps ownership of delegated power more firmly under Congressional control.

    1. What means other than legislating does congress have to do anything?

  3. Yet another stupid lawyer fictitious doctrine, delegation.

    If Congress can enact laws with thousands of pages, they can review and take full responsibility for the inscrutable content of the Federal Register.

    Again, lawyers, Article I Section 1 gives “all” lawmaking power to the Congress. Unless, formally approved by Congress, all regulations are void.

    Then the know nothing lawyers on the Supreme Court have said, regulatory actions do not have to meet the standards of criminal procedures. This is in the face of the fact that these regulatory enforcement are severe punishments, far more damaging to the defendant and to the economy than 30 days in jail.

    I am sick of your idiotic fictitious lawyer doctrines. Fictitious laws violate Fifth Amendment procedural due process rights.

  4. Sunset works fairly well in Texas. Our situation is somewhat different in that we have a legislature which meets for only 140 days every two years (except in special session at the call of the governor to deal with specified agenda only). They cannot increase their leverage by just doing nothing. And the Sunset Act is written such that if the legislature does not act recommendations of the Sunset Commission, then the agency under review is likely de-authorized in its entirety. Quoting the commission’s website “Sunset works by setting a date on which an agency is abolished unless the Legislature passes a bill to continue it. ” And every state agency, save for those created by the state constitution, is subject to Sunset.
    But we begin with some premise of limited government, and build structures to limit it.

  5. I think the argument that Congress is aimply too impotent to be trusted with legislation is a difficult argument to make in a republican form of government.

    In a saying attributed to Winston Churchill, “Democracy does not guarantee the people the best governmnet. It merely guarantees them the government that they deserve.”

    For this reason, I don’t think “congressional impotence” is a good argument for making congress impotent.

    Otherwise, why not simply have a king and be done with it?

    1. Congress is intentional allowing judicial review, and delegation to avoid the handling of controversial topics. Article I Section 1 gives the Congress “all” lawmaking power. Both judicial review and delegation are in insurrection against the constitution.

  6. The Framers, wary of overreaching government purposely designed Congress to be inactive, only legislating when absolutely necessary. Unfortunately the twin crises of The Great Depression and WWII coupled with the ambitions of a President for Life combined to create the Modern Administrative State and its legions of Mandarins or Apparatchiks, if you prefer. Those “reformers” chose not to include protection against a perpetually expanding regulatory regime, because that regime was their goal.

    1. That’s really wrong. It’s what libertarians and conservatives would like to believe, but it’s totally wrong.

      The framers designed the original Articles of Confederation legislature to be extremely weak. But the Articles of Confederation, like every attempt at a weak central government in human history, was an absolute failure. So they junked it and instructed the drafters of the Constitution to ensure Congress had the power to deal with any problem of national scope. And the drafters responded by creating a super-powerful Congress.

      And then, the next thing that happened is that over time, the economy became more interconnected (and in fact is not only national in scope but now global in scope). So a lot of activities that would have been considered local in 1787 are now well within congressional power.

      You can certainly argue that specific things exceed congressional power. I sometimes do too. But the framers experimented with libertarianism, found it to be a complete failure, and rejected it in the Constitution, replacing it with an awesomely powerful Congress. The story that some folks on the right tell themselves about congressional power is a total lie.

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