The Delegation Dilemma
Power Without Responsibility: How Congress Abuses the People Through Delegation, by David Schoenbrod, New Haven: Yale University Press, 255 pages, $28.50
Citizens' disgust with Washington, D.C., is not only reaching new heights; it is also aiming at new targets. Demands for structural, institutional reforms such as term limits and the Balanced Budget Amendment, rather than tax relief or other specific policy demands, now dominate the popular anti-government agenda. George Will's and John Fund's paeans to term limits, as opposed to more policy-oriented works, are now conservative-libertarian must-reads.
The clamor for radical institutional reform should come as no surprise; nothing else seems to make a difference. The liberal agenda is thoroughly discredited. Nobody believes that our sprawling, meddlesome government is a rousing success. Still, the political aristocracy in Washington, D.C., clings to its ways and even attempts to expand, as in the past year's thwarted attempt to commit the nation's entire health industry to Washington's tender loving care. Sensibly enough, voters have concluded that there is something wrong not just with this or that policy, but with the system.
David Schoenbrod's splendid little book fits squarely into this agenda for structural reform. It is an impassioned argument against one of the ways in which Washington wields power–the congressional delegation of lawmaking authority to administrative agencies, courts, and special interest groups.
Such delegation was once understood to be hazardous to republican government. Delegation breaks the chain of accountability that links the voters to their elected representatives; legislators cannot be held truly responsible for rules that were made by someone else. That is why John Locke argued that "the legislative cannot transfer the power of making law to any other hands," and why the Founders vested all federal legislative power in the Congress.
Nowadays, in contrast, delegation is considered a practical necessity, not an unmitigated evil. Any administrative state will require some delegation, it is widely assumed. Congress cannot be bothered with every detail or lay down rules for every contingency. Many questions of governance require technical expertise, which administrative agencies–but not generalist legislators–possess. And since the distinction–on which the opponents of delegation must rely–between making rules and interpreting them is fluid, if not entirely metaphysical, bureaucrats might as well run our lives as long as Congress indicates the general direction.
Schoenbrod shows that this purportedly pragmatic argument is in fact ideological hogwash. Congress doesn't delegate because it lacks the time or knowledge to deal with questions of detail; it delegates in order to exercise, as it were, power without responsibility.
Delegation makes interest-group bargains easier. For example, Congress has conferred upon the secretary of agriculture the authority to issue so-called agricultural marketing orders, which restrict supply, drive up prices, and thus create economic rents for producer cartels. It would be harder for the cartels' legislative patrons to ram the same deal through Congress. Moreover, once the power to fix prices has been delegated, it will remain largely unchecked, because the benefits of the arrangement fall upon a handful of beneficiaries (who will invest significant resources in maintaining it), while its costs are widely dispersed. Besides, the monitoring costs are prohibitive not only for voters but also for legislators, with the exception of the committees and subcommittees dominated by agricultural interests.
The New Deal, of course, operated precisely on this principle of entrusting bureaucracies with sweeping authority to regulate "in the public interest"–meaning, usually, to provide concentrated interests with an institutional mechanism for rent collection. In the modern era of social and especially environmental regulation, delegation has taken a different form. Congress typically prescribes absolutist environmental goals–"fishable and swimmable water" everywhere in the United States, air quality that protects public health "with an adequate margin of safety"–and instructs the Environmental Protection Agency to attain them promptly, by a certain date, and without regard to cost or technological feasibility.
If and when the agency takes these commands seriously, it will inflict severe pain on producers, workers, and consumers. Congressmen will then rush to denounce the agency; in exchange for a modest campaign contribution, they may also agree to rescue constituents from the "arrogant, runaway" bureaucracy. (They may go further: when President Reagan's first EPA administrator, Ann Gorsuch, called Congress's bluff and threatened to enforce the Clean Air Act, irate lawmakers engineered her removal.)
On the other hand, when the EPA backs off, it will miss the statutory targets, and lawmakers will rail against a "lawless" agency that has made "sweetheart deals" with polluters and ignored the "plain will of Congress." Either way, legislators get all the credit for their environmental commitment–and none of the blame for the attendant costs and dislocations.
Delegation, then, tends to produce the government we love to hate: a sprawling, meddlesome bureaucracy; shady and virtually unassailable arrangements between organized interests, captured agencies, and congressional subcommittees; policy fiascoes for which nobody can be held responsible; and endless dithering and horsetrading. Bureaucrats can't resolve conflicts that Congress, in its desire to please everybody and offend no one, has papered over. The result is less liberty, less democratic accountability, and more–and more unreasonable–regulation.
As Schoenbrod concedes, we would have this sort of government with or without delegation. For example, Congress does not normally delegate its authority to tax; still, few would argue that the tax code is less of a special-interest circus than any regulatory program. For another example, it is hard to imagine a more unambiguous legislative enactment than Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, sex, and other suspect classifications. Yet somehow, bureaucrats and judges managed to twist it into a quota and diversity racket.
The argument against delegation derives its plausibility in part from the contrast between hordes of unaccountable bureaucrats and 535 elected representatives. But Congress itself is a huge, fragmented apparatus, and curbing delegation may simply shift the power to make rules from one swarm of faceless drones at the EPA to another swarm in the Rayburn Office Building.
Finally, it is painfully obvious that delegation is only one among countless devices through which Congress abuses the people. Entitlement programs are on autopilot. Expenditure increases are declared to be budget cuts because they are calculated from artificially inflated baselines. "Legislation" passes in the form of appropriation riders and legislative vetoes, without up-or-down votes or bicameral consent. And so on. "Power without responsibility" is not the hallmark of delegation alone; it is our legislature's general operating principle.
For all that, the very fact that Congress resorts to delegation so frequently and extensively shows that it is a highly effective way of institutionalizing irresponsibility, and that lawmakers find the alternatives more costly. Curbing delegation would therefore be worthwhile, even if Congress could find partial substitutes.
The critical question is how to do this. There is no easy answer. The institutional incentives–the desire to do favors and to escape blame–that make delegation so popular also ensure that the players won't change the system. Only sustained public outrage might make them do so, but delegation is far too arcane a subject for radio talk shows or call-in campaigns.
Schoenbrod knows this and explains, in a critical chapter, "Why the Courts Should Stop Delegation (and Nobody Else Can)." He argues persuasively that the logic and language of the Constitution impose limits upon delegation; that the Supreme Court has ignored these limits and, in fact, denied their existence for decades; and that the commonly cited reason for this abstention–the lack of judicially manageable standards of permissible delegation–is a cop-out.
However, the Supreme Court is rarely guided by intellectual integrity and constitutional logic, and it is highly unlikely that the Justices would develop a robust non-delegation doctrine on their own.
As Schoenbrod himself ably demonstrates, the argument against delegation rests ultimately on a substantive presumption in favor of private orderings and against government intervention. The entire point of prohibiting delegation is to force a resolution of conflicts and to focus responsibility–in economic language, to drive up legislative transaction costs. So long as legislation requires a near-consensus, laws will be genuinely public-regarding or, at least, reflect a broadly acceptable compromise. But a reduction of transaction costs, through delegation or other means, increases both the total volume of legislation and the ratio of special-interest scams.
The Founders, of course, thought that this would be bad, which is why we have bicameralism, the presidential veto, and separate constituencies and different terms for the president, the House, and the Senate. The trouble is, the Supreme Court has a very different perspective. Modern constitutional law is based on the premise that the Court must not interfere with interest groups politics except to protect racial and other minorities or "preferred freedoms," such as speech and sex. Contracts, property, and other such rights that are the target of ordinary legislation are largely ignored, as are the structural constitutional constraints that used to protect liberty.
The Court's permissiveness toward delegation is of one piece with this perspective. Both are intellectually bankrupt, but the Court cannot shift gears without precipitating a major brawl with Congress. The Court doesn't do that very often. The most recent example in fact is the Court's resistance to the New Deal. Not surprisingly, the two cases in which the Supreme Court last struck down congressional enactments on delegation grounds date back to this era. But the Court lost the constitutional war, and the precedents that gave force and effect to the constitutional constraints on the federal government, including the anti-delegation cases, were effectively overruled. The Court correctly concluded that in the long run, it cannot resist the social and political elites. It has been loathe to challenge the Congress ever since, and it will not seriously attempt to do so in the future.
"It's time for a little perestroika on the Potomac," David Schoenbrod writes at the end of his book, and few would disagree. Despite his compelling analysis, Schoenbrod has surely failed in persuading the Supreme Court to bang the gavel on delegation. He may take solace, though, in having brought ordinary readers closer to picking up pitchforks. That, in the end, is how perestroika happens.
Michael S. Greve is the executive director of the Center for Individual Rights, a public-interest law firm in Washington, D.C.