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Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process

One of the ways that small government and democratic accountability could be promoted in the modern world is through the reinvigoration of the nondelegation doctrine.  Under that doctrine, administrative agencies would be prohibited from making discretionary legislative decisions and therefore Congress would have to do so.  If Congress, rather than administrative agencies, were to make the discretionary legislative decisions, this would both reduce the number of regulations that were enacted and would ensure that members of Congress would have to be responsible for their decisions.  By contrast, under the current system of delegation, the administrative agencies can use the efficiency of the administrative process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.

One common argument against reinvigorating the nondelegation doctrine is that it is not possible in the modern world.  Congress has neither the expertise nor the time to enact all of these regulations.  But this is not actually a good argument.  There is a method that would allow Congress to make these decisions, even assuming that it does not have the expertise or time to do so.

Under a well known proposal, all substantial regulations would have to receive the approval of Congress to become law.  The adminstrative agency would propose the regulation in much the same way it does now.  Thus, it would reflect the agency’s expertise as well as the efficiency and speed of the administrative process.  But the regulation would not go into effect unless it was approved by the Congress. 

To ensure that Congress took action in a quick manner, congressional rules would fast track these regulations.  They would be required to be brought to the floor within a limited period of time, there would be limited debate, and there would be no amendments allowed.  (Under a variation of the proposal, one might allow an amendment to be proposed with a supermajority of the house’s approval.)  Each house would then have to vote up or down on the regulation, and if it passed, it would be sent to the President.  Since it would then be a law, there would be no delegation to the agency.

The problem with this approach is not that it is unworkable or undesirable.  The problem is that one very powerful entity would hate it – the Congress.  They would be required to take positions on legislation with very little power to amend the statute or to obfuscate.  Congress will never pass such a reform.

The Constitution does allow a way to adopt such a provision.  It could be passed as a constitutional amendment through the convention method for amending the Constitution.  The states could apply for a constitutional convention, the convention could adopt the procedure, and the states could ratify the amendment.  While it might or might not pass, it would at least having a fighting chance and not have to overcome an entity with a conflict of interest.

Unfortunately, the convention method does not work, as I have described here and here.  The fear of a runaway convention, encouraged by law professors who often do not want that method interfering with Supreme Court decisions, means that there is never sufficient support for calling a convention.

Yet, as time passes, the list of amendments that would constrain Congress’s abuses and excesses only grows.  Add this nondelegation reform to the list.

Reader Discussion

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on September 13, 2014 at 11:38:34 am

Mike:

Fair enough and I am with you right up to the point where you argue against any amendments.
No, let there be amendments - let them fall from the heavens like a Phoenix gully-washer - perhaps, then nothing will get passed. after all, the intention of our Framers was that it should be difficult to pass legislation. Da ya tink we've had enough?

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gabe
on September 14, 2014 at 11:53:11 am

Maybe the best way to get Congress a greater role with respect to agency regulations would be for Congress to say that all regulations shall expire on the Inauguration Day of the next president, if they have not been enacted by then. This would give everyone time to see how the regulations work before Congress approves them, it would give the next president power to reinstate the regulations without congressional action if s/he wants, but it would otherwise sunset the regulations.

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Andrew
on September 16, 2014 at 17:43:42 pm

Hm. Not a crazy idea.

I recall a brief mania for state legislatures to adopt "Sunset Committees" whereby all regulations, and sometimes all statutes authorizing administrative agencies, would expire by a date certain unless some action was taken to prevent this outcome. In concept, this would permit a wholesale reduction of government. Agencies would be forced to justify their existence. But who had the time to actually read all the reports the agencies generated? No one. So, as I understand it, ultimately all the rules and statutes would be reaffirmed, or the sunset law itself would be repealed. Legislatures just didn't have the stomach for wholesale repeal.

In contrast, legislatures might well refrain from affirming a new rule if they were assured that the status quo would remain.

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nobody.really
on September 16, 2014 at 18:25:35 pm

I'm not aware that previous attempts to sunset regulations have included an exception allowing the chief executive to extend the regulations (but no longer than his term in office). Legislators would probably not be overwhelmed by reports from administrative agencies, and instead could just focus on the regulations that the chief executive wishes to sunset.

Under the Administrative Procedure Act (APA), I doubt that the president can currently quash whatever regulations he wants. I think some past presidents would have done a lot more quashing if they had been able to.

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Andrew
on September 16, 2014 at 20:19:35 pm

" I doubt that the president can currently quash whatever regulations he wants" - really, The Big O seems to be doing quite well in this regard - along with rewriting them to suit his current fancy!!

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gabe
on September 16, 2014 at 22:24:29 pm

I've been nosing around a bit, to see what the relationship is between an agency regulation and an executive order. Can the president override by executive order whatever agency regulation he disagrees with?

The following link suggests that the answer is "yes", at least with respect to proposed (rather than existing) agency regulations:

http://books.google.com/books?id=gbBFF4_XXBUC&pg=PA102

According to this link, all "significant" proposed agency regulations go to the Office of Management and Budget (OMB) for review. So there already seems to be a process for separating significant from insignificant regulations. Congress might demand that it also get a chance to reject those "significant" regulations.

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Andrew

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.