Reviving Congress’s Ambition

In Federalist No. 51, James Madison declared the separation of powers between the branches of government “essential to the preservation of liberty.” He counseled that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.”

“Ambition,” Madison concluded, “must be made to counteract ambition.”

Under Article I of the U.S. Constitution, Congress possesses “all legislative powers . . . granted” in the Constitution. Yet, in today’s regulatory era, Congress has increasingly shelved its legislative powers, leaving a lawmaking void to be filled by the executive branch and the administrative state.

Federal agencies have not hesitated to fill the legislative void. To provide one, albeit-imperfect illustration, consider that Congress in 2015 and 2016 issued around 300 public laws, filling around 3,000 pages of the Statutes at Large. Federal agencies, by contrast, published more than 7,000 final rules during that period, filling around 70,000 pages in the Federal Register.

The shift in lawmaking to federal agencies is problematic not merely in terms of quantity. Much scholarly attention has been paid to the permissible breadth of delegation under the Constitution. Indeed, just last term, in Gundy v. United States, Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, argued that the U.S. Supreme Court should revive the nondelegation doctrine to limit the breadth of lawmaking power Congress can delegate to federal agencies. Even though Justice Samuel Alito cast the deciding vote to reject the nondelegation challenge in Gundy, he noted that, “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

As others have observed, it is only a matter of time—and likely a short time, at that—before the Court will confront the scope of the nondelegation doctrine again. Now that Justice Kavanaugh is on record, we know that five Justices appear willing to revive the doctrine to constrain the breadth of congressional delegation to federal agencies.

In an article forthcoming in the Iowa Law Review, we argue that courts and scholars concerned about delegation should not focus myopically on the breadth and substance of the congressional delegations. There is an additional, under-explored dimension of the delegation debate: time.

Broad delegations of authority by one Congress become a source of authority for agencies to take action decades later, often in ways that were wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction, as agencies are forced to rely on outdated statutes to address contemporary policy concerns. As things stand today, agencies often rely on age-old delegations of authority to address contemporary concerns.

Consider the Clean Air Act (CAA) and its application to greenhouse gas emissions. Congress enacted the CAA’s basic architecture in 1970 and made substantial revisions in 1977 and 1990. As originally constructed, the CAA focused most acutely on localized air pollution. What courts have identified as the “heart” of the statute are those provisions authorizing and enforcing ambient air quality standards in metropolitan areas. Relatively little of the CAA’s core architecture concerned interstate air pollutants. Congress was not yet seriously concerned with global climate change when the CAA was passed and amended, and there are no CAA provisions drafted with concerns like global climate change in mind.

Nonetheless, 17 years after Congress last revisited the CAA, the U.S. Supreme Court in Massachusetts v. U.S. Environmental Protection Agency (EPA) concluded that the law’s definition of “air pollutant” was broad enough to encompass greenhouse gases, thus conferring on the EPA the authority to address climate change. Regardless of whether the Court was correct to interpret the CAA in this fashion, this decision set in motion a series of regulatory initiatives that Congress never contemplated, let alone endorsed, and forced the EPA to retrofit a twentieth-century statutory regime to address a twenty-first century problem. The resulting mismatch between the CAA’s architecture and the nature of both greenhouse gas emissions and resulting climate change has confounded the EPA and the courts since.

The temporal lag between legislative delegation and the use of delegated authority raises distinct concerns about whether such delegation is consistent with democratic governance. When decades pass between the enactment of statutes delegating authority to agencies and the exercise of that authority, there is a risk that the delegated authority will be used for purposes and in ways that the enacting Congress never considered. This may lead to situations where Congress has not provided the proper tool for the problem the agency is addressing, or where agencies are left to try and force the square pegs of contemporary problems into the round holes of previously delegated authority, as has occurred with climate change.

Congress retains the constitutional means to address this temporal problem of delegation and, more generally, to resist lawmaking encroachment by the executive branch. After all, it still possesses the constitutional authority to legislate. Yet it seems to lack the personal motives—or ambition—to counteract the rise and rise of the modern administrative state.

To encourage Congress to return to passing laws on a regular basis, Congress should embrace the practice of regular reauthorization of statutes that govern federal regulatory action. This legislative engagement would include regular assessment of agency action and regular recalibration if the agency’s regulatory activities are inconsistent with the current Congress’s policy objectives. In some regulatory contexts, this may require Congress to consider adding reauthorization incentives, such as sunset provisions designed to induce legislative engagement. In other contexts, Congress may decide that the costs of mandatory reauthorization outweigh the benefits. Nevertheless, Congress should more regularly use the longstanding legislative tool of reauthorization to mitigate the democratic deficits that come with broad delegations of lawmaking authority to federal agencies.

To be sure, Congress does engage in regular reauthorization in a variety of regulatory contexts. Yet Congress also systematically fails to reauthorize statutes, instead too often opting to appropriate funds without reauthorization. The Congressional Budget Office (CBO) has identified 971 expired statutory authorizations of appropriations with more than $300 billion for which Congress had appropriated funding for fiscal year 2019. The CBO only tracks expired statutory authorizations of appropriations; there are countless more authorizing or enabling statutes that have lapsed yet continue to be funded through general appropriations.

We should not hold our breath that Congress will resume regular legislative activity on its own—at least not on a voluntary basis. Exhortation is not enough, either. The costs of regular legislative activity to members of Congress apparently outweigh the benefits and the accompanying costs of dealing with statutory obsolescence. But some form of temporary legislation or mandatory reauthorization could help force Congress to take its legislative role more seriously.

In our forthcoming article, we explore how Congress could better use the reauthorization tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies. Our discussion is inevitably preliminary, focusing on the bigger-picture framing and leaving the implementation details to those with greater expertise in the legislative process. Still, a few key observations are worth briefly noting here.

First, although we argue for regular, mandatory reauthorization of statutes that govern federal agencies, a one-size-fits-all sunsetting approach would be foolish. Instead, congressional authorizing committees—in conjunction with the agencies they oversee—should decide whether to include, and how to design, a sunset provision for each particular federal agency and program. These oversight committees are well positioned to tailor sunset provisions so that they take into account the unique characteristics of the particular regulatory areas. One critical decision the authorizing committees will need to make is the size of the authorization window before any legislative sunset occurs.

Second, Congress does not face a binary choice between a complete legislative sunset or permanent legislation. It may also incorporate statutory “sunset defaults,” as we call them, to which the agency or program resets if it is not reauthorized. In some regulatory contexts, it might be advantageous to set a sunset default as something that would force Congress to revisit and reauthorize the agency or program. The lack of authorization could mean that an agency lacks the ability to act with the force of law.

Finally, it is not lost on us that our proposal to revive Congress’s ambition requires Congress to choose to resuscitate its own ambition. House and Senate rules already prohibit Congress from appropriating funds for unauthorized or expired federal agencies and programs, but members of Congress must unite in their calls for these chambers’ rules to be enforced during the appropriations process.

To succeed, our proposal will ultimately require a unique congressional moment—when a current Congress demonstrates the ambition needed to lock in a regular reauthorization process for future Congresses. There are a number of ways to capitalize on such a congressional moment, should it occur. Congress could change its rules to make self-executing the prohibition of appropriations without authorization—albeit, a prohibition that would still be subject to majoritarian override. Congress could also include in its various authorizing statutes express mandates that bar agencies from spending appropriated funding on unauthorized or expired programs or operations. An even more aggressive approach would be to amend the Administrative Procedure Act to provide for judicial review of agency actions on the basis that they lack statutory authorization of appropriations.

To be sure, any approach to implementation requires further development and empirical investigation. For instance, the impact of heightened reauthorization incentives on the internal dynamics of Congress at the committee, leadership, and chamber levels should be carefully considered. So too should their possible impacts on congressional procedures and norms, the dynamics of divided versus unified government, and the role of electoral pressures—just to name a few issues. We hope our forthcoming article, together with this series of essays in The Regulatory Review, will help frame and spur that further investigation.

We recognize that there will be a number of understandable objections to our proposal. These include concerns about the lack of congressional capacity (expertise, resources, and time) to engage in regular reauthorization of legislation, as well as worries about the possibility that our proposal would have an anti-regulatory disposition or that it might introduce too much regulatory uncertainty or otherwise distort policymaking. We respond to such objections in our article, and we will look forward as appropriate to responding further to such concerns in our response essay concluding this Regulatory Review series.

Congress possesses the necessary constitutional means to zealously guard its legislative powers. But it currently lacks the personal motives to do so. Requiring regular reauthorization of statutes that govern federal agencies would help Congress revive its ambition to counteract the ambitions of the President and the modern administrative state.

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law.

Christopher J. Walker is a Professor of Law at The Ohio State University Moritz College of Law.