IPA Forum: Delegation of Legislative Power
Congress is criticized for its practice of delegating legislative power to federal regulatory agencies. Among the leaders of the challenge is David Schoenbrod, the author of Power without Responsibility: How Congress Abuses the People through Delegation.
David Schoenbrod views Congressional ability to define and control public policy formulation as absolutely critical to the system of government envisioned by the framers of the Constitution. He argues that the set of institutions designed to promote liberty and justice is severely undermined by the delegation of broad law-making power to administrative agencies. He demonstrates that the delegation of legislative power has produced a regulatory system so cumbersome it cannot provide the protection that people need, so large it stifles the economy, and so complex it keeps voters from knowing whom to hold accountable for the consequences.
John P. Keith, IPA Senior Associate, convened a forum to analyze the merits of Schoenbrod's thesis. Following are highlights of the debate:
Annmarie H. Walsh (Luther H. Gulick Scholar in Residence, IPA): Your fascinating book raises both constitutional law and public policy issues. You argue that Congress should not be permitted to delegate law-making authority.
David Schoenbrod (Author): I argue that while the Constitution establishes that laws should be enacted by Congress and the President, law-making power today is delegated wholesale to federal Departments and Agencies. Congress passes statutes stating goals, but these do not define the rules of conduct which will achieve those goals. The agencies are left to do that. My thesis is that delegation has a profoundly adverse effect on how government works.
Walsh: The question of unfunded mandates now before Congress is of particular interest.
Schoenbrod: The result of delegating rule-making authority is that statutes end up being structured in such a way that they promise regulatory benefits without Congress having to assume responsibility for the cost. Consequently, Congress can proclaim to be in favor of clean air, but against the costs of achieving it; Congress can be in favor of removing asbestos from public schools, but not appropriate the funds to achieve that goal. This leads to the enactment of unfunded mandates. Government ends up making promises it can not afford to keep, and voters lose the ability to discipline legislators for imposing costs . . . If Congress had to legislate the rules of private conduct, it would have to take responsibility for the costs of its regulatory mandates.
Louis Winnick (Senior Consultant, Fund for the City of New York; formerly, Deputy Vice President, Ford Foundation): There is a great difference between the need for Congress to delegate technical detail and allow for contingencies, and Congress shifting the blame to federal agencies. Congressional statutes lay down basic guidelines and parameters, leaving technicians to provide the detail.
Schoenbrod: I do not expect Congress to master or specify all details. Rather, I suggest that it be required that a statute define the rules of private conduct as well as state its goals.
Bill Green (Attorney; formerly, eight-term Member, U.S. House of Representatives): I believe that numerous recent Congressional decisions suggest that legislators are not as eager as you indicate to avoid responsibility. Unhappy with the regulatory process, Congress attempted to add legislative veto provisions in order to grab back responsibility for itself, until the Supreme Court struck down that approach in 1983 [Immigration and Naturalization Service v. Chadha]. The periodic re-authorization of the marketing orders of the Agricultural Adjustment Act, in another example, constitutes a Congressional decision which the public, and the courts, understand is a confirmation of regulation.
Schoenbrod: My sense is that the driving force behind the activism you describe had more to do with Congress attempting to preserve its power, and less with assuming responsibility. While I agree that re-authorizing marketing orders does reflect a degree of responsibility, it also involves a degree of blame-shifting. If Congress, for example, actually had to vote for citrus marketing orders, voters would more closely connect legislators who voted for the bill with the higher prices paid by consumers at the marketplace.
Walsh: For that to happen, you would have to disaggregate appropriations bills. As Alan Campbell and I found out while researching the peanut market, the clustering of appropriations bills, or so-called log-rolling, means that Congress will often approve a bill involving a quota system for agricultural commodities, and many legislators will cast their vote without knowing which benefits accrue to specific farmers in specific counties. That determination is made by an agency, not Congress. It is not clear, however, whether a better outcome would result from having Congress vote on each separate appropriations piece individually.
Green: That is exactly what Congress is trying to do via the line item veto, to disaggregate appropriations bills.
Howard N. Mantel (Corporate Secretary and General Counsel, IPA Board of Trustees): An additional point of controversy arises when Congress names specific projects in appropriations bills, as for example the Los Angeles subway system, or New York's Pennsylvania train station.
Schoenbrod: Your point supports my contention that under the present system legislators use every opportunity to take credit and shift blame. Statutes which are perceived to be benefits, such as tax exemptions and spending projects, have an abundance of sponsors, because legislators want to be associated with something that looks good to the public.
Peter Johnson (Associate, Rockefeller Financial Services Corporation): I would like to point out that, historically, the thrust to substitute "experts" for democratically elected law-makers predated the onset of the New Deal and the creation of the administrative state. This country's transformation to an urban industrial society in the late 19th and early 20th centuries was in and of itself anti-democratic. During this period the power of elected bodies was diminished, for example through the elimination of many elected positions at the municipal and state levels, by expanding the terms of office, and by creating non-partisan wards. As we grapple today with Congressional legislative responsibility, we must recognize that for the past 125 years we have participated in a system which has attempted to take away authority from elected officials.
Schoenbrod: I agree; it is as if the people are not to be trusted. The New Deal era explicitly brought criticism of democracy. Pointing out that voters are often uninformed, irrational, prejudiced, and gullible -- and their representatives self-serving -- some argued that appointed experts rather than elected legislators should make law. However, John Landis, the New Deal's chief architect of the administrative process, advocated that agencies propose important laws but that Congress be required to vote on them before they could go into effect.
Robert King (Director of Regulatory Reform, New York State): I do not believe the fundamental problem is the delegation of legislative law-making authority to federal agencies. If we were satisfied as a community with the rules government is making, we would not be debating rule-making methodology. Having said that, my experience in Albany suggests that the people crafting and imposing regulations have no practical sense of the effects of their implementation. People who take on positions in legislators' or governors' offices, who work in the bureaucracies, or in campaigns, tend to be very young and inexperienced, but very energetic. Bills often get before Congress or a state legislature without their sponsor having read or fully understood the details, and the devil is in the detail! This enrages the recipients of the regulations.
Walsh: It used to be possible for an interested party to approach legislative committees to seek a compromise solution to proposed legislation; now it is difficult to identify the place one can seek changes.
John P. Keith (IPA Associate; formerly, President, Regional Plan Association): Yes, disputants before a legislature are forced to compromise, but differences over administrative regulations are settled in court. Rigidity has crept in.
King: In retrospect, I would argue that throughout the '70s we allowed emotion to overwhelm common sense with respect to environmental regulation. If we had applied a sensible methodology to identify how far we could really go, what we could afford, and what we had to do to enhance the health and safety of the population, maybe we would have achieved a better result.
Schoenbrod: Why did we not do that? Because we have had a process in place which does not force us to ask those questions. In deciding that "we are going to have clean air," Congress should have had to consider the cost . . . I concede [however] that the process of rule-making is not the whole problem; our culture wishes government could do more than it can.
Alan K. Campbell (Chairman, Commission of the Social Security "Notch" Issue; formerly, Dean, Maxwell School of Citizenship and Public Affairs, Syracuse University): Discussions about procedure and process often serve as vehicles to talk about public policy alternatives without saying so. For example, the debate regarding states' rights in the '50s and '60s was really about racial discrimination. I believe that in some respects delegation serves the same purpose. In the '80s, the momentum to delegate environmental regulation gained strength when it appeared that the political process was not going to produce the desired public policy. There is a political motive to delegate.
William Blitzer (Consultant, Edison Institute; formerly, President, Lightolier, Inc.): Could you comment on the Energy Policy Act? Congress requires states to enact energy codes not less stringent than a professionally adopted code, and the Department of Energy turns to the industry to establish an adequate efficacy standard. Delegation in that case would seem to allow the most knowledgeable people to participate in making intelligent decisions.
Schoenbrod: There is a lot of delegation in that process. Instead of regulating the energy efficiency of appliances, as it now does, the federal government could rely upon the consumers' own interest in choosing products that are energy efficient and less expensive to operate . . . If the reason for regulation is that the price that consumers now pay for energy fails to reflect the environmental costs of energy use, the federal government could tax energy use.
Blitzer: Congress is asking the administration to set standards, to print information, and to stop the manufacture of products that are less efficient than available alternatives. The level of detail and expertise required is not available at the Congressional committee level, whereas it is at the administrative department level, particularly when the relevant sectors of the economy are brought in. With respect to energy, the administration is moving in the right direction, even though there is a lot of delegation.
Schoenbrod: The objective of energy conservation can be pursued through a couple of different regulatory designs. The one you described implies a detailed "command and control" type of regulatory process; however, if you feel as I do that Congress ought to make all the laws, then agencies could draft legislation which would then be voted on. Absent delegation, politics would shift and would result in less intrusive approaches.
Walsh: All participants in this discussion have expressed at least a vestigial desire to reduce regulation, or its procedural aspects, conceivably by relying more on a market orientation to control the outcome. What remains is to figure out how we get there from here: in some cases it might mean eliminating delegation or legislation, and in others simplifying regulations.
From IPA Report, Fall 1995
Edited by Alberto Villar, IPA Senior Staff.
David Schoenbrod, Professor at the New York Law School, is a nationally-recognized expert on Congress's delegation of its law-making power to regulatory agencies, as well as remedies and environmental law. Professor Schoenbrod is author of Power without Responsibility: How Congress Abuses the People through Delegation (Yale University Press, 1993).