A Congress Ascendant
With SCOTUS taking aim at the administrative state, it is time to imagine what comes next.
In 2020, the Brookings Institution estimated that slightly more than 9 million people work for the federal government, or roughly 6% of the total workforce. Though there are only 15 Cabinet-level agencies, there are in total 137 individual executive agencies, all ostensibly tasked with individual tasks and all almost-assuredly overlapping with one another in some way or another.
In today’s America, many of the rules and regulations that govern our day-to-day lives originate, not from Congress, but from these unelected and, often, unaccountable agencies. For decades now, Congress has shirked its responsibilities, and as a result the executive branch has taken on quasi-legislative roles. Take, for example, this article, published in 2017, that estimates an average of 27 “rules” issued by executive agencies for every one law passed by Congress over the previous decade. The discrepancy between laws passed via legislative processes and rules issued by the executive branch should concern anyone who believes in the proper roles of our branches of government, no matter your political leanings. Unless you believe that technocracy—rule by experts—is the proper form of government, it should be worrisome that a bureaucracy unencumbered by the electoral process has such broad authority to rule.
Thankfully for us, however, SCOTUS seems to be primed and ready to strike at this bureaucracy.
Out of all of the decisions issued by the Supreme Court this summer, the most intriguing—if not the most controversial—was West Virginia v. EPA. In the majority opinion, Roberts declares that the EPA sought to create regulations through use of a statute that does not clearly delegate to the EPA the power to create said regulations. The decision rested upon the major-questions doctrine, a system of legal interpretation that says the courts should not defer to executive agencies on regulations of major political or economic significance. Though not as broad a ruling as some conservatives, including myself, were hoping for, West Virginia v. EPA makes clear that the current SCOTUS is willing to entertain, if not resurrect, the non-delegation doctrine (legal theory that claims Congress has no constitutional authority to delegate legislative powers to the executive branch, and one which I agree with entirely). Should SCOTUS continue down this path (as I hope they do), it is clear that the administrative state as currently constructed will cease to exist. As with the Dobbs ruling on abortion, West Virginia v. EPA sent a clear message to Congress from the Supreme Court; do your job, and stop asking others to do it for you.
Which, necessarily, begs the question; what comes next? How should Congress approach this new reality? And, in the 21st century, how does one govern a nation of 300 million people without an all-encompassing bureaucracy immune to electoral upheaval?
The short answer, of course, is for Congress to get down to the nitty-gritty of regulatory policy. But this simplistic answer ignores an unfortunate reality; in the 21st century, it is simply impossible for a Congress made up of 535 average Americans to govern a nation as broad and complex as the United States by itself. Even on issues clearly in the purview of the federal government, such as matters of defense, the world has become too complex for Congress to go it alone. As much as the conservatives such as myself despise the bureaucracy, we cannot deny its necessity any longer.
What we can do, however, is reimagine what the new bureaucracy might look like. For too long, the administrative state has served as a way for Congress to delegate legislative power to the executive. What if, instead of governing in their own right, these agencies were designed to aid Congress in governing? What if, armed with scores of analysts at their beck and call, Congress had the tools necessary to legislate the nitty-gritty of public policy themselves? Imagine a world in which the EPA, instead of issuing its own regulations based on vague delegations of power, analyzed and designed policy proposals at the request of Congress, and enforced those laws that Congress did decide to pass. Imagine a world in which federal agencies, instead of being quasi-legislatures in their own right, were public think tanks, fully funded and fully equipped to serve at Congress’ beck and call. These agencies would remain housed in the executive branch (for law enforcement remains the duty of the executive branch), but would be subservient, rather than be on-par or in many cases superior to as is the case today, Congress. Would this not be preferable to today’s reality?
The challenges of the 21st century are complex and endless. In a world in which Congress will be required once more to do its job, we should seek to make sure it has the tools needed to do so, beginning with a bureaucracy that exists to serve, not rule.
“ What if, armed with scores of analysts at their beck and call, Congress had the tools necessary to legislate the nitty-gritty of public policy themselves? Imagine a world in which the EPA, instead of issuing its own regulations based on vague delegations of power, analyzed and designed policy proposals at the request of Congress, and enforced those laws that Congress did decide to pass. Imagine a world in which federal agencies, instead of being quasi-legislatures in their own right, were public think tanks, fully funded and fully equipped to serve at Congress’ beck and call.”
Very interesting. A good proposal that I haven’t seen anywhere else. A serious attempt to move from the situation we have now towards a more effective governing reality. Now, there’s a ton of policy legwork that would have to back that up and work out the law of how it might actually happen in practice. But in theory I think it’s certainly a step in the right direction.
Good post Scott; I’m going to push you on two things.
First, if you believe in Congressional Supremacy, an idea imported from Blackstone and the English system, why don’t you think that Congress can decide how to best tackle a problem? In other words, Art I. Sec. 8 Cl. 18 of the Constitution authorizes Congress to make all laws “necessary and proper” to ensure that all government power, including executive power, is exercised effectively. The choice that Congress has made is the present administrative structure, so what’s the problem?
Second, administrative agencies are not free to do as they choose. They are limited by the oversight of Congress, the procedures listed in the APA, judicial review, and centralized executive review. When you write that there are 27 rules for each law passed, that is because the majority of rules passed by agencies are inconsequential.
For example, the Congressional Review Act requires agencies to report on their rulemaking activities to Congress and provides Congress with a special set of procedures to consider legislation to overturn those rules.
I write this to say that the problem is not structural but political.