Since my 1999 book, The Future of Democracy, I have been critical of delegation: the practice of passing vague laws and asking regulators to work out the details. This practice has become pervasive, not only in the United States but in all the wealthy societies that I know about.

We are taught that the US federal government has three branches, but it has actually had at least four for the past century. The fourth branch consists of the regulatory agencies, which generate 72 pages of regulations for every single page of law passed by Congress.

Congress often intentionally enacts values that are in tension or impossible to achieve fully, so that regulators have the responsibility to make tradeoffs. For instance, the authorizing legislation for the Environmental Protection Agency requires the “Federal Government to use all practicable means, consistent with other essential considerations of national policy, … to the end that the Nation may … attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.”

Of course, the whole Environmental Protection Act is more detailed than this, but it leaves a vast amount for the agency to decide. When an EPA policy does not avoid all undesirable consequences (and how could it?), legislators can complain and thereby act as if they were exercising “oversight” even though they have ceded their power to the agency.

Delegation would be appropriate if good policy could be determined by science, but policy choices always involve values. Delegation would be appropriate if utilitarianism (in the form of cost-benefit analysis) were an adequate theory of value, but it is not. Thus, in practice, Congress gives bureaucracies the discretion to govern. This is undemocratic, whether we think of democracy as majority-rule, public deliberation, or accountability. Delegation is also inconsistent with rule-of-law because it generates mutable and inconsistent rules that are hard to predict and follow.

Therefore, in 1999, I favored something like last week’s Loper decision, which held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

I favored this kind of ruling because I thought it would force the legislative branch to make important decisions instead of enacting vague statutes that might end up being decided by judges. This is not the Supreme Court’s intention in Loper. The decision anticipates that courts will decide what laws mean, using “the traditional tools of statutory construction” to resolve ambiguities, which is the “special competence” of judges. But no judge can decide what the law really means when Congress has written it vaguely. The court will simply make the law. I thought that Congress would be compelled to avoid this absurd outcome by passing clear statutes, which would return both power and accountability to the elected legislature.

What has changed is my confidence that Congress can actually legislate, in the sense of passing or updating substantive statutes. In 1965 alone, Congress passed at least 10 landmark bills that established agencies or dramatically altered national policies. Congress has passed fewer than 10 such laws in the last half century put together.

As an example, Congress has never passed legislation explicitly about the climate. Federal regulatory agencies are using the 1970s Clean Air Act (written before Congress was really aware of climate change) to try to regulate carbon. Likewise, federal financial laws were passed before cryptocurrency; and the Telecommunications Act of 1996 still governs despite some minor new developments, such as social media and smartphones.

I’ve previously explored several explanations for the decline of lawmaking, including the weakening of parties as actual institutions, the altered media system, a loss of confidence and clarity among both progressives and libertarians, and polarization.

A recent example supports blaming the media. Biden did sign landmark environmental legislation, but it has been almost entirely ignored. Why would a legislature be responsible and effective if it passes several trillion dollars of new spending and no one notices?

Another explanation is weak legislative capacity. I will digress briefly to explain that concept: A legislative body votes on bills. That is a zero-sum process: each “no” vote cancels each “aye” vote. But bills must come from somewhere. Developing legislation requires awareness, research, consultation, design, and persuasion. The number and sophistication of pending bills is not zero-sum; legislatures can have more or less capacity to develop legislation.

Today, only five percent of Hill staffers surveyed by the Congressional Management Foundation and the Partnership for Public Service believe that Congress has adequate capacity, and the other 95 percent are correct. Congress can barely get it together to pass budgets that merely modify current spending. With the exceptions of the environmental bills that Biden signed, Congress has little capacity to develop laws–whether conservative or progressive.

Under these circumstances, the Loper decision will shift power from the regulatory agencies to the courts. Given the composition of the federal judiciary, this shift will make regulations more conservative, regardless of what the public might want. Congress will not easily fix this problem, because Congress cannot write ambitious and extensive laws.

However, the best solution remains the same: responsibility must shift to Congress. Here are four ways to accomplish that:

• Enhance the capacity of Congress. More people could work for the legislative branch, developing detailed statutes or amendments that determine outcomes without delegating decisions to bureaucracies. There are proposals for enhancing the Congressional Research Service, the General Accounting Office, and the Congressional Budget Office–all bureaus of the legislative branch. These agencies are about 20 percent smaller than they were in the later 20th century, and a fourth one, the Office of Technology Assessment, is now defunct (Select Committee, 2022, p. 127). Staff could also be added to congressional offices and committees; and whole new nonpartisan bureaus could be formed. The general strategy is to do the same kind of work now assigned to the executive branch but within Congress.
• Taxing and spending instead of regulating: I believe that wealthy people and companies should bear most of the burden of addressing social problems. Regulations may shift costs and alter behavior for the better. However, the costs and effects of regulation are difficult to predict and account for. They do not appear on the balance sheets of the government. It is possible for burdens to fall on the wrong people (e.g., consumers instead of investors) or not to be efficient. In general, it is more transparent and democratic to impose burdens in the form of explicit taxes and then to use the revenues to purchase things that voters can assess. Taxing and spending are clearly constitutional; there is little that activist conservative jurists could do to stop it. What it requires is political will.
• Codification: After a large body of detailed law has emerged over a long period, one option is to codify it: to impanel a committee that analyzes the whole corpus and replaces it with a much more concise and general structure. Justinian did this with Roman law, ca. 534. The Napoleonic Code of 1804 did the same for the many specific laws that the French revolutionary governments had passed since 1790. The Model Penal Code of 1962 was an attempt to codify US state criminal laws. At nearly 200,000 [sic!] printed pages, the Code of Federal Regulation is ripe for codification, either as one whole corpus or in big chunks, such as environment and labor. Today’s Congress certainly cannot codify, but a commission could produce a draft for Congress to approve. Congress could create this commission or, in theory, it could form in civil society and simply ask Congress to consider its recommendations. I am generally skeptical of AI, but codification is a task that computers might assist.
• Public engagement: A commission would be dominated by experts, but representative people can be selected for juries or other kinds of deliberative panels that consider value-laden questions and make decisions. The US EPA offers a page about Citizen Juries, which is one such model. There is a burgeoning literature on “sortition” (randomly selected decision-makers), in both theory and practice, with many of the ambitious examples coming from overseas. Sortition is also a form of delegation, but random selection and a deliberative format provide a different kind of legitimacy. Congress might have to amend the Administrative Procedures Act to make courts defer to citizen panels, but nothing would prevent such an amendment.

Do I expect any of these solutions? Essentially, I expect very little positive to come from Washington over the next two years or more. Nevertheless, now is an important time to envision a better system. We are likely to experience instability or even chaos, and we should be aiming to come through that to a period of real reform.

Source: Select Committee on the Modernization of Congress, Final Report, 2022. See also a trillion here, a trillion there, and pretty soon, you’re talking real money; judicial activism when the legislative branch is broken; legislative capacity is not zero-sum; 

In my public policy course this week, we used a Harvard Kennedy School case entitled “A Rising Storm: Eric Garner and the Explosive Controversy over Race & Policing,” which introduced questions about criminal justice, violence, and race in New York City.

In my own work based on national survey data, I find that being Black raises the odds of being mistreated by the police almost five-fold (4.6 times) when considering gender, education, age, English-language proficiency, household income, housing type, county-level income, and any mental health diagnosis. However, the Kennedy School case also draws our attention to the 75% drop in homicide and 50% drop in rape in New York City between 1990 and 2013, which require explanation and assessment.

I suggested that we all use mental models (simplified representations of the world) to think about such issues. Our models may be more or less precise and articulated in our own heads. If we want to know what’s best to do, we are obliged to clarify our models to ourselves and seriously consider whether alternatives might be wiser.

I asked students to consider models of different forms and types:

• A root-cause model explains many phenomena as the result of one underlying cause. Just as you should expect a weed to return unless you pull it up by its roots, so you should expect a social injustice to recur unless you remove its roots–that is the implication of the metaphor. “Radical” comes from the Latin for “root,” and proponents of root-cause models often feel that they are the radicals.

In this case, the root might be white supremacy, invoked to explain police bias, the distribution of wealth and poverty, the unequal impact of public schools, and other current realities.

Classical Marxism recommends a different root-cause model: the economic system always gives rise to the state, and a bourgeois state employs police to protect the economic elite. Substantial reform is impossible without a revolution. Finally–as a student astutely noted–some libertarians might offer a root-cause model in which the underlying problem is state power, always fundamentally violent (regardless of the economy); police violence is a predictable manifestation.

• A cyclical model is built of components that affect each other, often reciprocally or in loops. For instance, perhaps racial discrimination worsens poverty, poverty increases the prevalence of crime, and crime exacerbates poverty by raising costs for victims and perpetrators and by discouraging investment. Those elements might be only a few parts of a more elaborate cyclical model.

This kind of model resists the notion of a “root” and instead encourages us to “break the cycle” by acting on vulnerable links. For example, reforming police union contracts would not address white supremacy, but it might break a specific cycle that involves impunity for violent officers, and that change could have positive effects across a connected system.

• An organizational model would treat the NYPD as an entity with a mission, budget, personnel, and outcomes. We might presume that by changing the organization, we can get different outcomes. For instance, it may matter what the NYPD measures when it assesses its employees. Should officers be promoted for making many arrests for minor offenses, or not?

We might consider two variants of an organizational model:

• In one, the NYPD is fundamentally a bureaucracy, per Max Weber. It is made of people who have clear responsibilities within a hierarchy. Bureaucracies are supposed to make reliable, predictable decisions. However, some degree of discretion is inevitable, and bureaucracies strive to handle human choices by either (a) minimizing discretion or (b) ensuring that bureaucrats are as professional as possible. Professionalism means competence and trustworthiness. Per Michael Lipsky (1969), police are “street-level bureaucrats,” faced with constant discretionary decisions. If data show that actual police officers’ choices are biased or otherwise detrimental, then they should either (a) lose discretion or (b) become more professional as a result of better hiring and training.
• In another variant of the organizational model, the NYPD is a public agency. The people of New York vote for elected leaders, who appoint senior police officers as their agents. If we object to the outcomes, then (a) a majority of voters have the wrong beliefs or values, or (b) the electoral system is flawed so that elected leaders don’t represent the people, or (c) those leaders’ will is being frustrated by their agents.

• In a genealogical model, the NYPD and related institutions (such as the New York City Public Schools) derive from predecessors. Like you and me, these organizations have ancestors that are responsible for much that’s true about them today. Among the NYPD’s predecessors were slave patrols that arose in 19th century America to prevent enslaved people from escaping to freedom. However, institutions typically have many ancestors, not just one, and the NYPD could also be traced back to village constables in England or to law enforcement bureaucracies in 19th century France and Germany. (After all, the word “police” is French.) The point of a genealogical model is to uncover historical causes that may require recompense, reparation, and repair.

• In a behavioral model, you might think of human beings as a species that has proclivities to violence (including sexual violence) as well as tendencies to cooperation and care. You might think that mass societies with high degrees of anonymity will permit violence unless it is surveilled and deterred. Relatedly, you might think of peace and social order as collective goods that pose dilemmas at large scales. (Why should individuals sacrifice to protect strangers against violence?) In that case, police departments might represent solutions to a problem of collective action. This analysis is not necessarily conservative–in the sense of protective of the status quo–because the 30,000 armed police officers of the NYPD represent at least an implicit source of violence. A behavioral model might suggest that the police also need surveillance and deterrence. And we might consider alternative ways of achieving the collective good of peace, without armed officers.

• In an interest group model, the population of New York City is configured into many organized groups, although some people (such as unlicensed street vendors like Eric Garner) may not have effective organizations. Groups gain power from numbers and/or money. Among the most relevant groups in this case are the police unions, civil rights organizations, the city’s Democratic Party and specific political campaigns, and business interests. The reality on the streets is the result of competition and negotiation among interest groups. The best way to change outcomes is to form or strengthen groups that reflect the interests that concern you.

Different types of models can certainly be merged. That said, a model should not be excessively complicated, because the point is to enable wise judgement. A huge page of symbols and arrows will not yield clarity.

Also, there is a risk of letting our initial assumptions drive everything, so that we go looking for any components that confirm what we already thought. (A genealogical argument here, a bit of root-cause rhetoric, a specific proposal for breaking a vicious cycle ….) I think we are more likely to learn something new by following the logic of a particular model to its conclusion and then seriously considering alternatives to it.

See also: social education as learning to improve models; making our models explicit; police discrimination, race, and community poverty; the political economy of policing; professionals as grizzled veterans or as reflective learners; what must we believe?; and Complexities of Civic Life.