beyond Chevron

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

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.