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Congress and the New Administrative State
Simply put checks and balances by the other branches are indispensable.
Congress and the New Administrative State
By Adam J. White
Abstract
Congress delegates immense power to agencies, but when Congress delegates such broad power, it should ensure that checks and balances guide and limit the agency’s exercise of that power. As Congress commits ever-greater powers to ever-less-accountable agencies, including agencies created by Dodd–Frank and the Affordable Care Act, it can also impose accountability through its other oversight powers—namely, oversight hearings backed by the force of Congress’s power over appropriations and appointments. Proposals such as the REINS Act and the Regulatory Accountability Act would enhance checks and balances against regulatory overreach. To restore limits in the long run, Congress should narrow overbroad delegations, restore checks and balances to agency structure, and codify administrative procedures that enhance those checks and balances.
The administrative state begins with Congress. As the Supreme Court has observed, “an agency literally has no power to act…unless and until Congress confers power upon it.”[1]
Congress delegates immense power to regulators, but according to the Supreme Court, Congress’s delegation of power to an agency will pass constitutional muster so long as Congress specifies an “intelligible principle” to guide the agency’s exercise of discretion.
That’s the “nondelegation doctrine,” and it’s a relatively low hurdle. The Court itself observed that “in the history of the Court we have found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy” with virtually no limits.[3] Both of those statutes were struck down in 1935; so as Harvard law professor and former Administrator of the Office of Information and Regulatory Affairs Cass Sunstein once remarked, “we might say” that the nondelegation rule “has had one good year, and 211 bad ones (and counting).”[4]
Professor Sunstein himself admits that it’s really more nuanced than that,[5] and appellate courts have used the nondelegation doctrine to strike down statutes or to construe statutes narrowly, including one significant case last year.[6] But the basic point is sound: The nondelegation doctrine can’t singlehandedly save us from regulatory excess.
The Framers gave us a system premised upon the branches checking and balancing one another—ambition countering ambition, as Madison put it.[29 ]So how did the executive branch and the administrative state succeed in amassing such broad, unchecked power?
There are many reasons,[30] but today’s report highlights an important one: By passing large, open-ended statutes such as Dodd–Frank and the Affordable Care Act, lawmakers can “claim credit for ‘doing something’ while evading blame for specific regulations.”[31]
This is, unfortunately, not a new problem.[32] I think that the late John Hart Ely put it best when he wrote: “It is common to style this shift [from Congress to the executive branch] a usurpation, but that oversimplifies to the point of misstatement”; Congress “ceded the ground without a fight. In fact…the legislative surrender was a self-interested one: Accountability is pretty frightening stuff.”
Simply put checks and balances by the other branches are indispensable.
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