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The Regulatory State on Autopilot: A Response to Comments

My earlier post prompted several very thoughtful comments that well warrant a reply and, folks willing, further discussion.

Thanks to Ron Johnson for his kind words. Yep, there’s ample reason to worry that conniving politicians in Washington go into business for themselves and their friends. The concern is as old as the republic: it was a standard Antifederalist trope. The standard Federalist reply was that the system requires some distance from the electorate (what we now call “agency slack”): that’s Madison’s argument for representation, large electoral districts, “filtration,” etc. And you can argue that the system is now failing us because those mechanisms have broken down: every obscure Congressman is perfectly monitored. Every legislator knows that Medicare is going bust; every legislator has to lie about it and vote the AARP line. In my estimation there’s some truth to the “political class” argument, but it’s not the whole truth.

“gabe” is right to criticize the Court’s slavish adherence to precedent, especially statutory precedent. One particularly obnoxious form of the argument: Congress hasn’t overturned our precedent, so it must be okay. That would make sense if Congress were the House of Commons (and the Court, the House of Lords). In a system of divided powers, it’s a prescription for the Court to push “dynamic” statutory interpretation to the point of, well, absurdity: see Mass v. EPA. There are Kennedy opinions (as well as several forceful Scalia opinions) that reject the “Congress can always overturn us” rationale. By all rights, the Court should act accordingly in Coalitions (assuming, as I do, that it grants cert). But I’m not optimistic. Mass v. EPA has more in common with, say Windsor than with any AdLaw or statutory interpretation case I’ve read. It’s a profession of eco-correctness; and on those sorts of issues the Court typically stays its course and tells us peasants to shut up, lest the rule of law suffer. See, e.g., Planned Parenthood.

“z9z99”’s idea of across-the-board sunset provisions is intriguing but, in my judgment, not a promising prescription. If memory serves, it was a favorite proposal of the Carter administration (along with long-forgotten good government reforms like zero-base budgeting). And speaking of that administration: at the time, Congress got so upset about the FTC and its Chairman (Michael Pertschuk) that it refused to authorize the Commission altogether. It wasn’t re-authorized until some time during Tim Muris’s reign, under Bush 43; in the interim, the agency continued to operate under continuing resolutions of one sort or another. Similarly, environmental statutes (such as the CAA) often contain sunset provisions; they’re routinely ignored or circumvented in the same fashion. The broad consensus in the PoliSci literature is that sunset provisions “work” only when the coalition that enacted the statute in the first place has fallen apart. But that happens only rarely: barring seismic, sudden shifts, agencies will manage to keep their programs in line with their paymasters’ wishes and take care not to test the limits of congressional tolerance. Under those normal conditions, a sunset provision that’s intended as a veto point instead becomes an opportunity point: it helps the various “stakeholders” (so called because they drive stakes through the economy) to pile on garbage that might otherwise remain un-enacted, for want of a legislative vehicle. Every re-authorization of the CAA that did occur provides depressing evidence.

Sorry to be the skunk that pours cold water, or whatever.

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