A response to a lively debate on the modern administrative state.
We were thrilled and honored when the editors of The Regulatory Review decided to publish a series of responses to our forthcoming Iowa Law Review article, “Delegation and Time.” In this reply, we cannot cover all the ground traversed in the responses. But we want to thank our interlocutors for their thoughtful engagement and provide a preview of our reply, which will be further developed in the published article.
As we noted in our introduction to the series, the nondelegation debate has fixated on the breadth of statutory delegations, both in terms of the range of authority granted and the degree of discretion afforded. It has neglected the problems inherent in federal agencies relying upon stale, often-decades-old statutes to address contemporary concerns, including many that were wholly unanticipated by the enacting Congress or that could no longer receive legislative support. To address this timing problem, we argue that Congress should return to a regular reauthorization practice for statutes governing federal agencies and offer a suite of legislative tools that could help incentivize Congress to do so.
By suggesting that the temporal aspect of congressional delegation is missing from the current nondelegation debate, we do not mean to suggest that scholars have not explored the temporal dimensions of delegation in other contexts. In their response, Simon Haeder and Susan Webb Yackee helpfully connect our project to some of the political science literature that has explored the temporal lag and coalition drift between legislation and subsequent regulation. These scholars are certainly correct that “there is inevitably some lag between the passage of a statute and the writing of a rule.” Our focus, however, is not on the inevitable, foreseeable lag. We are concerned with the decades-long, unanticipated lag between some statutory delegations and subsequent regulatory actions.
For example, when Congress enacted the Clean Air Act, it knew it would take many years for the U.S. Environmental Protection Agency to develop and implement emission control regimes. It created mechanisms to ensure state implementation plans would be updated as our scientific understanding improved. Yet the provisions Congress enacted to facilitate the improvement and protection of ambient air quality were not drafted with matters like global climate change in mind, and there is no reason to think a Congress intent on addressing such concerns would endorse the Clean Air Act’s central provisions as the mechanism of choice.
The political science literature in this area has much to teach us about how Congress should design legislation to maintain some control of the regulatory process. Indeed, in a fascinating new study, Header and Yackee find an interaction between the temporal aspects of regulation and the breadth of delegation. They find that the broader the delegation the longer it takes for the agency to regulate. In other words, if Congress wants an agency to respond sooner, the results of this study suggest Congress should speak clearly and specifically—a critical lesson for Congress if it decides to engage in the regular reauthorization process we recommend.
In his thoughtful response, Joseph Postell suggests we may have the implications of delegation’s timing dynamic backward. Postell suggests that “the reinterpretation of old laws to address new purposes is a way of avoiding democratic deficits rather than a source of democratic deficit. Using open-ended statutes for current purposes allows the law to be updated to reflect the wishes of the living, rather than the dead who first enacted them.”
Perhaps, in some circumstances, repurposing old statutes to address new issues may be more in line with current popular opinion polling, and such repurposing may do more to shrink the democratic deficit than doing nothing at all. But such bureaucratic repurposing still lacks the deliberation and authorization—and accompanying political accountability—that an elected legislature plays in our constitutional system. It cannot address democratic-deficit concerns insofar as democratic accountability requires legislative ratification of new agency initiatives.
The remaining responses largely focus on one of the most powerful counterarguments to our proposal: Congress lacks the capacity to engage in regular reauthorization.
To be sure, as Josh Chafetz helpfully points out, congressional capacity has declined precipitously in recent decades. Congressional staffing has declined not only in individual-member offices, but in committee offices and supporting agencies as well. Inflation-adjusted pay for congressional staff has declined, making it harder to maintain substantive expertise. We agree that these trends need to be reversed if Congress is to engage in more effective oversight and reauthorization. Indeed, one potential side effect of our proposal would be an increased incentive for Congress to ensure it has the staff resources and expertise necessary for meaningful oversight and reauthorization of regulatory programs.
Chafetz also expresses concerns about the role federal agencies would play under our proposal—especially if Congress does not staff up. We share those concerns. Another welcome side effect of regular reauthorization, however, would be that members and their staff serving on the various authorizing committees would necessarily gain greater subject-matter expertise, become more familiar with the federal agencies their committees oversee, and deepen the committees’ working relationship with those agencies. In so doing, they would hopefully be better positioned to ensure that congressional members and staffers—not bureaucrats or lobbyists—are the primary statutory drafters and substantive drivers of the legislative process.
Richard Pierce raises a different type of congressional capacity argument. He argues that any proposal to restore Congress’s legislative role will fail without broader reforms to how members of Congress are elected and how Congress is structured. Tackling these deeper structural dynamics exceeds our ambitions for this project. Perhaps Pierce is correct that Congress cannot regularly legislate until the process is fixed. We are hopeful that he is not. But even if he is correct, we will still have the problem of delegation and time, and Congress, once fixed per Pierce’s suggestions, should consider our proposals to remedy that problem.
Admittedly not all see value in our call for greater congressional engagement. Richard Parker argues that congressional failure to update old statutes is “an unproven and probably illusory problem”—though later asserting quite forcefully that “Congress is paralyzed” and that “Congress often cannot pass a budget, or even regular appropriations, much less reauthorization legislation.” We are unlikely to find much common ground on the role of Congress in the modern administrative state with someone who does not believe Congress has, to a large extent, shelved its legislative powers. Based on Parker’s response, it seems we simply place a greater value on legislative involvement in contemporary lawmaking.
But Parker’s critiques are nevertheless disappointing. We do not, contrary to his lead criticism, argue that our proposal is constitutionally required. Nor do we advocate for his strawman of a blunt, across-the-board sunsetting requirement for regulatory programs—a proposal we expressly disclaim as “foolish.” To the contrary, as Chafetz recognizes in his response, we “suggest that Congress should remain nimble and experiment with different sorts of reauthorization schemes.” We readily accept that mandatory reauthorization is more appropriate in some contexts than in others, and we anticipate the need to customize reauthorization baselines and requirements to the particulars of given policy contexts—an approach we coin setting the appropriate “sunset default.” Identifying the relevant criteria that make a given program more or less suited to a given reform is certainly something that will require more prolonged analysis.
The Regulatory Review has a sterling reputation of publishing high-quality commentary on important and timely developments in administrative law and regulatory practice. This series has not disappointed. The responses have been insightful and helpful. Our article, when published later this year, will be better because of these interventions. And, most importantly, this critical debate about the proper role of Congress in the modern administrative state has been sharpened.
This essay is part of a seven-part series, entitled Reinvigorating Congressional Reauthorization.