We now live in a world of delegation. It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies. It was not always that way. The binding rules in the United States used to be enacted or recognized by other entities. The statutory rules would be enacted by Congress and they would be interpreted by the courts. Common law rules would be recognized by the federal courts. And, of course, more areas were addressed solely at the state level. It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.
This transformation to a world of delegation – to the Administrative State – has been quite astounding. It is worthwhile pausing to consider some of the ways it happened. There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.
The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion. For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency. The responsibility for this delegation largely lies with Congress, which decided to pass the statute. The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well. Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.
We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive. Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a variety of claims. Legislation is supposed to be passed by Congress but agencies do most of the legislating through rulemaking. And wrongdoing by executive officials is generally reviewed by executive officials rather than by congressional impeachment. Some of these actions may be constitutional under the original meaning, but some are not.
Another way that the executive takes action that is supposed to be shared with Congress is through appointments. The Constitution provides that appointments are to be made by the President with the advice and consent of the Senate, but the President often makes appointments on his own. Sometimes this was done through a broad understanding of the Recess Appointments Clause (which a majority fo the Supreme Court accepted, but see here for what I regard as the better view).
At other times, the President makes unilateral appointments of the White House staff on the ground that these staff members – however important their positions seem to be – do not constitute officers of the United States under the Appointments Clause. The reason is that these staff members are said merely to give advice, to engage in nonbinding conversations with officials, or to convey messages from the president to officials – actions that would not involve the exercise of substantial authority and therefore would not implicate the Appointments Clause under the Supreme Court case of Buckley v. Valeo. The public policy problem is that the number of these White House staff members is growing and therefore the power of the federal government is increasingly exercised by people who have not secured the consent of the Senate. Again, some of these actions concerning appointments may be constitutional under the original meaning and some may be unconstitutional.
In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy. While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature. This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.
Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies. According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control. A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”
I recently published an essay in Regulation magazine proposing a reform that would promote deregulation. The idea is to establish an administrative agency with the power to deregulate – to identify undesirable regulations passed by other agencies and to repeal those regulations.
Here is the intro:
For those who favor strong limits on regulation, the last 100 years in the United States have been disappointing. During this period, regulation grew almost continually. One of the reasons for that growth is the delegation of legislative power to administrative agencies, which allows those agencies to who write regulations with little oversight from elected lawmakers. To rein in regulation, advocates of limited regulation argue that Congress’s delegation of its legislative authority must be restrained.
Unfortunately, reforms that attempt to eliminate or limit delegation are unlikely to be enacted. The practice of delegation has become a basic aspect of our political system. Its prevalence in the modern world is no accident. It occurs because delegation is popular with so many of the prevailing powers, including Congress, the president, the agencies, and those who favor regulation.
But proponents of limited regulation need not despair. While delegation certainly promotes regulation, it can also be used to promote deregulation. Congress could create an administrative agency that is given the power to pass deregulations – rules that either eliminate regulations or move the country back to a system of property and markets. By employing delegation in an effort to reduce regulation, proponents of limited regulation will not be fighting against one of the fundamental forces of our modern political system, but instead be employing that force for a beneficial purpose.
In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war. This problem results from not following the Constitution’s original meaning in the separation of powers area.
A distinct, but similar problem occurs in the area of Congress’s delegation of legislative authority to the executive branch – where once again departures from the original meaning concerning the separation of powers have problematic consequences. Here Congress actually takes the action of delegating legislative authority to the executive, in large part because this allows Congress to avoid political responsibility for the regulatory decisions that the agencies take. These delegations, however, violate the Constitution’s requirement that the Congress make the basic policy decisions.