Leading scholars debate proposal for Congress to sunset its statutes and require reauthorization.
For decades, the modern administrative state has been the target of scrutiny. Recent legislative gridlock seems only to have compounded the critique of agency-crafted law, as sometimes agency action appears to be the only way for Presidents to achieve their domestic policy goals.
In a forthcoming law review article, “Delegation and Time,” Jonathan Adler and Christopher Walker have proposed a solution for fixing what they call the “temporal problem of broad delegation.” When partisan gridlock keeps Congress from revisiting major statutes, these statutes grow old, but agencies still rely on them to find ways to solve new problems. Adler and Walker argue that Congress needs to revisit laws on a regular basis through a process of reauthorization at regular intervals. This would be accomplished by making legislation only temporary—having it “sunset” unless Congress steps up to reauthorize it. The sunsetting of key legislative authority, Adler and Walker argue, would give Congress incentives to revisit statutes and keep them more current.
Spurred by a fledging and spontaneous debate on Twitter over the Adler and Walker proposal, The Regulatory Review invited leading scholars from around the country to comment on their idea. In this series of essays, Adler and Walker first introduce their major arguments before we turn to five commentaries by leading scholars, each published on a separate day. Adler and Walker close out the series with a response to the five commentaries.
This series brings together the following contributors: Jonathan H. Adler, a professor at Case Western Reserve University School of Law; Josh Chafetz, a professor at Cornell Law School; Simon F. Haeder, a professor of political science at Pennsylvania State University; Richard W. Parker, a professor at the University of Connecticut School of Law; Richard J. Pierce, Jr., a professor at George Washington University Law School; Joseph Postell, a professor of political science at the University of Colorado at Colorado Springs; Christopher J. Walker, a professor at The Ohio State University Moritz College of Law; and Susan Webb Yackee, director of the La Follette School of Public Affairs and professor of political science at the University of Wisconsin-Madison.
March 02, 2020 | Jonathan H. Adler, Case Western Reserve University School of Law and Christopher J. Walker, the Ohio State University Moritz College of Law
The problem of broad delegation 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.
March 03, 2020 | Simon F. Haeder, Pennsylvania State University, and Susan Webb Yackee, University of Wisconsin-Madison
Adler and Walker rightfully suggest that policymaking via rulemaking outweighs policymaking via statute today. With growing polarization between the parties, the present-day Congress will likely see its policymaking role further limited.
March 04, 2020 | Josh Chafetz, Cornell Law School
By all means, we should encourage Congress to revisit, reorient, and reform its grants of authority to the executive more frequently. But we should not do that without giving it tools adequate to the task.
March 05, 2020 | Joseph Postell, University of Colorado at Colorado Springs
Without major changes to Congress itself, it is difficult to envision Congress effectively changing and updating the statutes that grant responsibility to agencies. The internal incentives in Congress’s structure contribute to its inability to engage in regular reauthorization.
March 09, 2020 | Richard J. Pierce, Jr., George Washington University Law School
Congress cannot restore its capacity to legislate unless the nation stops using primaries to choose candidates and returns to the peer-based systems for selecting candidates that the country used until the Progressive Era and that virtually all other democracies continue to use.
March 10, 2020 | Richard W. Parker, University of Connecticut School of Law
Congress should not sabotage regulatory authorizations with sunset provisions. Instead of sunset provisions, America needs a sunset of the enervating combination of ideological gridlock and special interest capture that now nearly paralyzes Congress.
March 11, 2020 | Jonathan H. Adler, Case Western Reserve University School of Law, and Christopher J. Walker, The Ohio State University Moritz College of Law
This series has not disappointed. The responses have been insightful and helpful. A critical debate about the proper role of Congress in the modern administrative state has been sharpened.