- The Washington Times - Wednesday, November 15, 2000

On Nov. 7, while America's attention was focused on who would become our next president, the Supreme Court heard an appeal of a case that could dramatically alter the power of federal regulatory agencies.

The case involves tighter standards for ozone and new standards for soot announced by the Environmental Protection Agency in 1997. The EPA claimed those standards were based on "compelling new scientific evidence," meeting their responsibility under the Clean Air Act to set air pollution standards "requisite to protect the public health."

Last year, however, the Court of Appeals in Washington, D.C., found them "arbitrary and capricious" as the EPA had "failed to state intelligibly" the scientific basis for them. It rejected the soot standard as "an unconstitutional delegation of legislative power." The Supreme Court will rule on whether the EPA standards violate the Constitution's reservation of law-making powers to Congress. Unless those standards have an adequate scientific basis, they reflect the political rather than scientific judgment of the EPA, and the Constitution does not seem to permit the delegation of such decisions, which will have the force of law, to executive agencies.

This could lead to a blockbuster ruling, because if the court invokes the long dormant non-delegation doctrine, which prohibits the legislative delegation of functions reserved to Congress by the Constitution, no executive agency would be untouched. Article I, Section 1 of the Constitution states that "all legislative Powers herein granted shall be vested in a Congress of the United States." Further, Article I, Section 8's enumeration of the powers of the federal government specifically assigns those powers to Congress.

However, Congress has long since abdicated a great deal of its lawmaking responsibility by delegating its legislative power through vague mandates to unelected executive agencies, such as the EPA, which then impose the actual regulations that are legally binding on Americans. The result has been ever-growing power for federal bureaucrats. They need not clearly spell out their policies to the public, much less submit them for voter approval. And when a scandal makes some regulatory abuse or failure apparent, Congress hides from their ultimate responsibility by blaming the same bureaucrats they delegated the power to and then failed to effectively oversee a clear breakdown in the constitutional protection from arbitrary government power.

While the clear meaning of the Constitution provides a powerful reason for restricting our current Pandora's box of congressional delegation, there is another very practical reason, as well. A Congress that leaves the details of its policies vague, to be filled in later by others, does not know enough for its "solutions" to improve social outcomes. For legislation to adequately resolve a societal problem, lawmakers must know not only the specifics of what the problems are, but also the specifics on how they will "fix" them. But if legislators really knew the details of how to fix a serious social problem, they would trumpet that at every opportunity. Therefore, when they choose to delegate policy details to executive agencies, they must not know enough to provide the specifics of a workable plan. If this is so, they do not know enough to make their fine-sounding solutions actually work, because policy effectiveness is determined by the details of implementation.

Vague delegation of responsibilities to executive agencies is not a prescription for effective public policy. So why is that the dominant current approach to so much legislation? First, the demand for congressional solutions far outstrips the supply of real solutions. Second, since most voters are poorly informed about the details of problems and policies, the appearance of solving problems works almost as well electorally as actually solving them, and delegation gives the appearance of legislative solutions without requiring legislators to actually have solutions. Finally, delegation provides an all-important scapegoat function. If an agency starts getting too much political heat, legislators can claim they did their part when they threw money at the problem, while making sure agency "bureaucrats" take the blame for any failure.

If the Supreme Court reinvigorates the non-delegation doctrine in this case, it would force real reforms on both Congress and the executive agencies they have abdicated much of their real job to. Not only would it bring us back into line with the words of the Constitution, it would also make Congress once again accountable to voters in a way that is more than just a slogan by forcing our elected officials to answer for agency excesses and failures rather than letting them blame bureaucrats for their own lack of real solutions.

Gary M. Galles is professor of economics at Pepperdine University in Malibu, Calif.

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