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It is commonplace to assert that Congress exercises oversight over federal bureaus and executive agencies. But is this a reasonable assertion? Or might it represent a romantic yearning for an earlier and simpler age, or even for an age that never existed?
Article I, Section 1 of the Constitution declares that “all legislative powers herein granted shall be vested in a Congress of the United States.” What is known as the nondelegation doctrine holds that Article 1, Section 1 prohibits Congress from delegating legislative authority to executive branch bureaus and agencies. A rigorous application of the nondelegation doctrine would undoubtedly overturn much of the so-called progressivist legislation of the past century, for that legislation confers on executive agencies the ability to make rules as well as to administer them, and also often to judge complaints about their actions.
Within the traditional concept of separation of powers, Congress creates the laws of the land through legislation, the President and the bureaus and agencies that comprise the executive branch executes and implements those laws, and the judiciary determines whether Congress and the President have conducted themselves properly in using their powers of office. The image of a separation of powers reminds one of a carton of Neapolitan ice cream with its three distinct zones of flavor. Actual democratic practice has a strong tendency to swirl the flavors together, rendering it impossible to get a bite of one flavor alone without obtaining all three flavors. The nondelegation doctrine seeks to restrict the ability of Congress to delegate its rule-making authority to executive bureaus and agencies.
In what is surely one of the most significant books so far this century, Philip Hamburger asked in 2014: Is Administrative Law Unlawful? Through some 500 pages of densely packed analysis and argument, Hamburger answers his question resoundingly in the affirmative. The reader of this book comes away with a good sense of the radical transformation our system of Constitutional government has been undergoing for the past century or so.
The American republic was founded on a constitution of liberty where people were pretty much their own bosses, as was reflected in our Declaration of Independence’s recognition that “governments derive their just powers from the consent of the governed.” The United States was founded on a rejection of the European feudal heritage where government was the province of the well-bred and the rest of us had no option but to mind our stations in life.
The spread of the administrative state through Congressional delegation of legislative authority to executive agencies has been establishing a contemporary form of feudal government. No longer is there a class of people who are born to be lords of the manor. But lords of the manor are spreading among us all the same. These lords attain their positions not by birth but by advancing into the higher regions of bureaucratic administration.
While Congress does sometimes inquire into executive actions without receiving responses, more common is a Congressional disinterest in the bulk of the activities of those executive agencies and bureaus. Congress delegates such powers all the time across nearly all arenas of governmental action. A few highly publicized instances arise where executive agencies defy Congressional inquiries. The usual pattern, however, is a general Congressional disinterest in the activities of most bureaucratic agencies most of the time.
This observation about the absence of strong Congressional interest in nondelegation points to a valuable insight about human nature in politics that the American Founders would clearly have appreciated. Why does Congress delegate legislative authority when it doesn’t have to and, indeed, is precluded from doing so by a plain reading of the Constitution?
A good starting point for addressing this question surely resides in recognizing that increasing the amount of oversight Congress must exercise will interfere with other activities that members of Congress would prefer to do. One of those activities is providing constituent services, which occupy a great deal of time by Congressional staffs. With constituent services, Congressional staffers help constituents to deal with problems their constituents face in dealing with executive agencies and bureaus.
Without the delegation of legislative authority to executive agencies, those constituent problems would be blamed on Congress. With delegation, however, these are blamed on bureaus and agencies. Members of Congress thus receive gratitude from constituents for helping them to navigate the bureaucratic jungle they allowed to grow in the first place. Members of Congress can improve their electoral prospects by refusing to exercise the oversight that a plain reading of Article 1, Section 1 requires of Congress. Even more, exercising such oversight would reduce the ability of Congress to enact even more legislation, and yet Congress lives in large measure on enacting legislation that various interest groups in society favor.
Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.