Regulatory Costs of Delegating Lawmaking Power to Executive and Unelected Administrators

This post is part of a series on “Rule of Flaw and the Costs of Coercion: Charting Undisclosed Burdens of the Administrative State,” and comprises an element of A Brief Outline of Undisclosed Costs of Regulation.

[T]he necessity for administrative regulations binding private parties is defended on grounds that officials need such power to fill in details and resolve ambiguities in statutory language. But if that is the rationale for the power, it is hard to believe that, before the twentieth century, no executive officer ever thought that unilaterally declaring a law binding private conduct would be helpful. …Viewed in this light, [T]he inaugural volume of the Code of Federal Regulations, published in 1938, can be seen as approaching a confession that before then the federal executive had not long claimed power to legislate for private parties. If such power had previously been thought to exist, how, during the earlier period, did the executive publish the law, inform private parties of their duties, and satisfy its due process obligations? Not using the Statutes at Large, inaugurated with the First Congress; that was reserved for congressional enactments. Not using the Code of Federal Regulations; that did not exist.

—Robert R. Gasaway and Ashley Parrish, “Administrative Law In Flux” p. 385

The administrative state, blessed by Congress, has dispensed with the Founders’ system of legislation fashioned solely by an elected body.

Regulatory reforms call for holding Congress accountable for agencies’ rules and regulations, but the deeper reality is that Congress already is accountable, in the sense of blame, for the current state of affairs.

One often hears debate regarding over-reaching bureaucrats (and they do overreach), but Congress itself bears responsibility for having relinquished power without responsibility to executive and independent regulatory agencies via legislation itself. Congress blessed the entire process it rails against.

And the courts defer to these agencies as part of a baked-in overarching bias in favor of the administrative state. Congress is likewise liable for some excesses of the “imperial presidency” from war without declaration to the pen-and-phone.

Amusingly, one of the greatest costs of the administrative state is that the classical delegation of power citizens gave Congress to protect individual rights from infringement is ignored, while powers to bestow positive rights in the form of spoils on beneficiaries—who vote for more of the same plunder—are delegated by Congress with abandon.

Those prior handoffs to agencies then allow Congress to pursue and nurture still further grants of positive rights over aspects of private life (health care, education), and regulation of legacy and frontier industries. That clears the way for the left wing to talk Green New Deal, Medicare for All and universal basic income in the same breath (with no reference to or questions by media about the body count of socialism).

Agencies, therefore, do most of the lawmaking, and are being prepped in this manner to do still more. In 2018, 291 laws were enacted, and 3,367 regulations issued. Should regulation prove unpopular, that is not a problem for Congress, since delegation previously inoculated it, and so blame can be deflected to agencies when facing a voting public.

Technology, its vast wonders notwithstanding, can unfortunately aggravate over-delegation. Christopher DeMuth deems more recent expansions of administrative power, in part, as:

…the product of modern affluence and technology—which have reduced political transactions costs, increased demands for government intervention, and enabled Congress to supply the increased demands by transferring lawmaking to executive agencies. Specialized, hierarchical agencies can employ communication and information technology much more thoroughly than a conflict-riven legislature, and thereby generate law on a much larger scale.

Even as the aforementioned bias of judicial deference to agencies reinforces the delegation problem, delegation deteriorates further even within agencies themselves, as career civil servants rather than Senate-confirmed appointees sign off on rules binding private conduct. Todd Gaziano and Tommy Berry call such rules “invalid.” In their formulation, “The attempted delegation of rule-making authority to someone not appointed as an ‘Officer of the United States’ violates one of the most important separation-of-powers clauses in the Constitution.”

The Supreme Court may revisit this suite of concerns. That would be appropriate—the costs of the regulatory state in terms of loss of liberties are mounting.