- - Wednesday, July 8, 2015

Delegation of discretionary authority to administrative agencies is often attacked as unconstitutional, undemocratic and contrary to the public interest.

The historical argument against delegation goes as follows: In the beginning, the Congress legislated the details of federal law and left it to the President and the Departments of Government to implement the legislative plan.

Then the Executive became restless, and, together with allies in Congress, ate of the fruit of the delegation tree, after which Congress abdicated its assigned role and left it to the President and his Departments to make the laws.

The Elders tried in vain to prevent this fall from constitutional grace, but in time they were overwhelmed by opposing forces. This has led to great suffering among the people, who have been deprived of their freedom and prosperity by an unholy trinity of what were supposed to be opposing forces.

In truth, long before the New Deal’s supposed derangement of our three branch governmental system, it was recognized that effective government depended on delegation. As the Supreme Court of Pennsylvania observed in 1873, “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.

There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.”

Of the three arguments against delegation, the argument that it is unconstitutional is the weakest.

While, of course, only Congress may enact a statute, nothing in the text of the Constitution prohibits delegation of discretionary authority to administrative agencies. If the Executive Branch claims authority beyond that which has been delegated, a court should declare the executive action invalid not because of a violation of the nondelegation doctrine but because the action is simply beyond the officer’s legal authority. This could include instances in which Congress’s language is so vague that no feat of interpretation could support the conclusion that the claimed authority has been delegated.

The argument that delegation is undemocratic is stronger than the constitutional attack, but it is similarly insufficient to condemn much of contemporary administrative action. Delegation may allow Congress to try to pass the buck and place important governmental activity behind a shield of anonymity and unaccountability. Yet, on close examination, although far from perfect, the system works pretty well. The federal courts invalidate agency action when an agency strays beyond the bounds set by Congress. Oversight spotlights regulatory failure. The American people are not fooled by Congress’s efforts to deflect responsibility. No doubt there is plenty of room to improve the openness and accountability of the regulatory system, but the role of money in politics is a much more serious threat to democracy than delegation.

The argument that delegation is contrary to the public interest is the most difficult to evaluate, because it depends upon one’s perspective on the wisdom of regulatory policy. To those who prefer a government that doesn’t do much, or find most regulation ineffective and overly costly, delegation is an unmitigated disaster. To those who support the federal government’s regulatory program, delegation is the lubricant that keeps the system running smoothly. Agency rules promulgated under power delegated by Congress have saved or lengthened hundreds of thousands of lives over the last several decades. These include federal Motor Vehicle Safety Standards, OSHA worker safety rules and EPA air quality rules. Further, without the increased flexibility that delegation provides, human ingenuity would lead to avoidance of the spirit, if not the letter, of many legislative commands. Congressional oversight and judicial review, exemplified by numerous decisions invalidating agency rules, provide effective checks on unwise agency action.

In my view, it would be much more productive to focus on the details of regulatory programs than to keep debating the constitutionality and wisdom of delegation. As the Pennsylvania Supreme Court recognized nearly 150 years ago, it is unrealistic to expect Congress to legislate the particulars of technically complex and wide ranging regulatory programs. Agencies and the President have great incentives to be responsive to public opinion and to avoid counter-productive regulation. Delegation is here to stay, and the political process that determines just what authority Congress delegates is alive and, mostly, well.

Jack M. Beermann is Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law.


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