The temporal problem of delegation is rooted in empirical evidence.
Professors Jonathan Adler and Christopher Walker’s new research article, “Delegation and Time,” could not be better timed. Scholars from a variety of fields have long highlighted the inherent difficulties attached to reconciling the vast policymaking power held by the largely unelected bureaucracy in the United States. That reconciliation is made possible, in part, by the fact that the policy work of agency officials is circumscribed—or is supposed to be circumscribed—by the actions of the elected Congress and the elected president at the federal level.
Indeed, this observation is now ubiquitously accepted in the law, political science, and public administration literatures, as scholars often point to the various tools, such as political appointments, presidential oversight, budgeting powers, and analysis requirements, that elected policymakers use to check their un-elected counterparts. Elections equal accountability, so the thinking goes.
To this, Adler and Walker add an unquestionably important concentration on timing. Specifically, they focus on the period of time between the passage of a statute and its regulatory implementation by federal agencies. The authors argue that existing scholarship too often overlooks how the inherent lag between passage and implementation of legislation can affect bureaucratic accountability to political principals. Indeed, this dynamic relationship holds the promise of exacerbating longstanding concerns held by some Americans that the existing tools of oversight employed by elected officials to rein in the bureaucracy might not fully be up to the task.
In their timely piece, Adler and Walker argue that the delegation of policymaking authority from the Congress and the president to government agencies creates a critical temporal problem. Adler and Walker begin by noting that there must be a statutory basis for agency policymaking. This means that agencies must point to a specific delegation of policymaking power to issue legally binding government rules and regulations.
Adler and Walker then assert that the link between legislation and regulation ought to be tight, not only in terms of the policy substance but also temporally. That is, if too much time passes, they assert, the link begins to fray and eventually becomes decoupled. Anecdotally, they then conclude that agencies often take a long time to issue rules with their delegated policymaking authority, before they settle on the conclusion that Congress ought to revisit its nonchalant approach to delegation and assert its checking power on agency behavior. In the last part of their article, Adler and Walker then put forward several reforms to address what they see as a “democratic deficit” in the policymaking process.
As we suggest above, there is much to laud about their insightful piece of scholarship, which focuses on an issue that has dramatically gained in importance over the recent years. Yet, there are also numerous ways in which it—in conversation with other research—may help us to better fill out the broader picture of delegation and time. We will suggest two here.
First, the Adler and Walker article largely takes as a given that there is a temporal problem associated with delegation. Yet, this is an empirical and normative question in need of investigation.
Fortunately, one of our recent studies provides some of the first large-scale evidence on the link between legislation and regulation. Complementing Adler and Walker’s work, we ask: When does legislation trigger regulation? To answer it, we use data drawn from almost 350 public laws spanning four decades, which are then matched up with thousands of regulations. Specifically, we focus our attention on laws providing the U.S. Department of the Interior with new rulemaking authority, as well as all corresponding draft rules issued by the Interior Department over roughly the same time period.
Our approach allows us to capture how long it takes for a statute to trigger a draft rule—which in our dataset spans from just a few months to many decades. To better analyze our data, we also employ flexible parametric models to understand the factors that speed up and slow down agency responsiveness to delegations. We find evidence that the breadth of the statutory delegation of authority is a key factor in driving rule timing.
For instance, the median time between a statute and rule is just over a year for statutes with a narrow delegation as compared to many years for those with a broader delegation. Put differently, when Congress expressly directs an agency to issue a rule, the agency does so much more quickly than in those cases when a broad delegation is provided. We also find evidence that Congress can further increase the probability of agency responsiveness by holding legislative hearings before a statute is passed or by including statutory deadlines.
In the end, the normative “take-aways” from our article depend on one’s predilections. For instance, how long is too long? Where is the line between responsive and non-responsive? Answers to these questions may very well depend on one’s political and ideological preferences, and how those preferences match up with who holds power in Washington, D.C. Yet, regardless of what one concludes from the data, understanding the empirical regularities at the Interior Department and at other government agencies is necessary to push knowledge forward.
Second, it also strikes us that the identification of a “temporal problem of delegation” is not quite as new as Adler and Walker at times suggest. Writing in the early 1990s, Ken Shepsle specifically pointed out that a time consistency problem is built into the writing of government regulations since there is inevitably some lag between the passage of a statute and the writing of a rule. Indeed, one of the key insights of the pathbreaking article by Matt McCubbins, Roger Noll, and Barry Weingast three decades ago was that delay is built into the regulatory process on purpose and partially at the behest of legislators. Other work, such as Miranda Yaver’s scholarship on the U.S. Environmental Protection Agency, has framed these issues as coalitional drift.
Moreover, a separate and growing line of political science scholarship focuses on the use of regulatory deadlines to speed up agency regulatory decision-making. Although this literature generally does not spell out the temporal problem in the level of detail provided by Adler and Walker, its existence, along with its empirical findings, suggest that Congress has a key tool—statutory deadlines—at its fingertips to address the issue of temporality and Congress frequently employs that tool.
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.
Yet at the same time, dozens of agencies and departments will continue to churn out thousands of pages of regulations and guidance on a regular basis. Given this, Adler and Walker have provided a great service to the field in writing their new article, which neatly explicates the temporal problem of delegation and its tie to regulatory production, while also raising important normative issues. In doing so, they add new argumentation and insights into a crowded area of thought on policymaking authority and political accountability.
This essay is part of a seven-part series, entitled Reinvigorating Congressional Reauthorization.
