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For Better Policy, Congress Should Stop Punting to Executive Agencies

Yesterday the Federalist Society’s Regulatory Transparency Project and Article I Initiative hosted a fascinating panel discussion here in Washington, D.C. about the dynamic relationship between Congress and federal regulatory agencies. Panelists assembled in the National Press Club to discuss a new law review article by Prof. Donald Kochan of Chapman University titled “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress.”

Kochan focuses on environmental policymaking, though his analysis of the incentives and processes at work apply to other areas as well. Plenty of other political and legal scholars have observed the basic dynamic he describes, which is that members of Congress often get credit for passing vague, idealistic laws while avoiding the blame for the inevitably controversial rules that federal regulatory agencies use to implement them. Lawmakers get to tout that they “voted for cleaner air,” for example, while later pantomiming disapproval of expensive new regulations that were the direct result of the same vote. It is not the most intellectually honest modus operandi, but it has proved politically lucrative over time.

The same environment can benefit pro-regulation politicians as well.  Advocates of greater federal control can claim that the lack of strong regulation on issues like air or water quality is due to the failure of regulators who are supposedly falling down on their job, rather the members of Congress who have failed to pass legislation calling for the desired policy in question:

Thus, in environmental law and elsewhere, we see a distinct kind of congressional ambition to shield Congress from accountability by strategically abdicating lawmaking authority—supplanting the Framers’ anticipated ambition to erect strong fences around their claim on exclusive legislative authority. Of course, it works all the better when the agencies become complicit in the process by themselves finding benefits in this altered allocation of power and control…

While Kochan is clearly what fellow panelist Andrew Grossman termed an “anti-administrativist,” and thus, one assumes, opposed to most of the progressive policy agenda that has been enacted via the modern administrative state, his arguments against the erosion of congressional power are bipartisan. In the current administration, for example, left-leaning policymakers are quite upset about what some powerful regulatory agencies are doing, because they are undoing environmental policy enacted under a Democratic president. If Congress (in particular the 111th Congress) had succeeded in enacting via statute what later became the Clean Power Plan, for example, it might have been much more difficult for the Trump administration to effectively sweep it away via the promulgation of the Affordable Clean Energy rule, the latest details of which were announced (and reacted to) earlier today.  

Intriguingly, even our left-leaning friends with utopian policy solutions might embrace Kochan’s preference for legislative rather than administrative policy because of the way in which large bureaucracies have a reputation for managing rather than actually solving big problems:

…if the problems are solved or done more efficiently, or if Congress reins in agency discretion or authority, there will be less need for those tasked with solving the problem. Indeed, their usefulness may entirely disappear if the problem is completely eliminated or removed from their jurisdiction. Thus, officials who have the power within their grasp need to find a way to grab as much as they can and hang on, yet they also need the problem with which they are tasked to persist lest they outlive their usefulness.

Thus both right- and left-leaning legislators are equally open to the charge that if they really want to right some national wrong—whether it be of allowing an injustice to exist, or of not restraining the government itself from perpetuating one—they are better served doing the hard work of legislating.