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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.

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