Old Statutes, New Problems

Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes to new problems. The challenge of managing statutory obsolescence affects many agencies, and arises in areas as diverse as financial, telecommunications, and food and drug regulation. We examine this dynamic in two fast-moving policy domains, environmental and energy regulation, where Congress has been remarkably absent in recent decades. Contrary to what some might suspect, we find that agencies manage these statutory fit problems carefully, strategically and often with deliberate restraint. Rather than “going for broke,” they tend to choose policies that stop short of open conflict with Congress, yet reflect the agency’s mission, the president’s priorities, and the limits of their statutory authority. We show how, following the Goldilocks principle, agencies seek to get it “just right.” We then explore the implications of this dynamic — in which agencies are the primary statutory updaters — for the institutions in our Separation of Powers scheme: the president, Congress, the courts and the agencies. We argue that the absence of Congress from the policy process can inure to the president’s benefit in the contest to shape agency decisions, especially when the president’s priorities are consistent with the agency’s traditional mission, meaning that the White House and agency are aligned. Finally, we focus on what this new strategic environment of agency policymaking means for judicial review of agency efforts to update the regulatory regime. We argue that, for a variety of reasons, agencies are better suited than courts to do that updating work, and that the case for deferring to agencies in that task is stronger than ever with Congress absent from the updating process. Our account also challenges the view that courts should return important regulatory matters to Congress rather than allow agencies to adapt statutes, because to do so is “democracy forcing.” We argue that the normative commitment to democracy forcing is based on a flawed empirical assumption about the probability of congressional action. Indeed, because the agency is the legally designated custodian of the statute (so designated by the enacting Congress), the agency may have the superior claim to interpret the statute’s application to new problems during periods of congressional quiescence