Institutional Gridlock

In response to a number of recent high-profile policy questions, administrative agencies have discovered new applications for statutes that were not envisioned by the legislators who wrote them. The U.S. Environmental Protection Agency, for example, has reinterpreted the Clean Air Act as authorizing regulations to limit greenhouse gas emissions, despite the law’s focus on localized air pollution. In addition, the Federal Communications Commission shoehorned its “open internet” order into a statutory scheme that has not been revised since 1996. In both cases, and in several others, agencies have relied upon existing grants of authority from previous Congresses rather than implementing the will of the current one. In addressing this phenomenon in their article, “Delegation and Time,” Jonathan Adler and Christopher Walker highlight important concerns about the democratic deficits in the administrative state. Statutes written generations ago are used for purposes that their enactors, and the constituents they represented, never envisioned when they enacted them. But where Adler and Walker see democratic deficits, I see the possibility that law and policy can evolve to reflect the preferences of those who are currently governed. Adler and Walker’s article focuses on an important theoretical question: the democratic implications of exploiting the ambiguity of old laws to address new circumstances. Theoretically, this raises a democratic deficit problem—in their words—because it uses the work of a previously existing coalition of voters and representatives to accomplish policies that may not have been supported, or even contemplated, when they enacted the law. The ideal way to make policy in a representative republic would be to enact new legislation, or amend existing legislation, to address new problems, thereby ensuring that the laws reflect the consent of the currently governed rather than the previously governed. The problem Adler and Walker seek to address resembles the problem Thomas Jefferson and James Madison confronted in their famous exchange about, in Jefferson’s words, “whether one generation of men has the right to bind another.” Jefferson famously proclaimed that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.” For Jefferson, “no society can make a perpetual constitution, or even a perpetual law.” The implication, he concluded, was to make sure all laws and constitutions could expire every 19 years. Jefferson’s argument, although ably rebutted by Madison in response, suggests a different way of looking at the problem that Adler and Walker raise. Perhaps the reinterpretation of old laws to address new purposes is a way of avoiding democratic deficits rather than a source of democratic deficit. Using open-ended statutes for current purposes allows the law to be updated to reflect the wishes of the living, rather than the dead who first enacted them. When the Clean Air Act is used to deal with greenhouse gas emissions, it is being updated to reflect the wishes of those who matter—the currently governed. In short, Adler and Walker’s article assumes that the failure to update statutes produces democratic deficits, but they could offer a more robust theoretical argument in defense of their position. Further developing the theoretical premises concerning democratic deficits would strengthen their case and anticipate some of these objections. To solve the problem as they define it, Adler and Walker argue that Congress must return to its traditional practice of regular reauthorization of statutes. In a bygone era, Congress regularly reauthorized statutes and engaged in substantive amendment processes when statutes would be reshaped by new political coalitions reflecting changed wishes and views of the people. The 1990 amendments to the Clean Air Act stand as perhaps the prototypical example of this process. Adler and Walker grant that Congress still engages in reauthorization efforts. But just as Congress’s ordinary legislative powers have eroded, so too has its reauthorization efforts. Adler and Walker make a forceful case that changing statutes’ sunset provisions in targeted and specific ways will encourage members of Congress to engage once again in the legislative process. This would, in their view, produce statutes that are updated to reflect the current wishes of the people, rather than simply reinterpreted by administrative bodies to meet current needs. Adler and Walker’s proposal simply seeks to change the external incentives that drive the internal dysfunction of Congress. If Congress had to reauthorize statutes, it would act. Right now, it does not act because it does not have to. This strategy resembles the approach Congress takes to fiscal matters. By setting government shutdown deadlines, members are forced by external pressures to act. Making this comparison, of course, points to a potential problem with it. Changing the external incentives of congressmembers has not always worked. The internal incentives in Congress’s structure also contribute to its inability to engage in regular reauthorization. These internal incentives are well chronicled and have been the subject of much scrutiny: the decline of policy committees and their chairs, the centralization of agenda control in House and Senate leaders, and the inability of ordinary members of Congress to participate in the legislative process. This has led to what James Wallner calls “the death of deliberation.” Without changes to Congress’s internal structure, the ability of Congress to reauthorize programs effectively will be highly limited. Scholars’ division over how Congress should be reformed poses the real challenge. In short, without major changes to Congress itself, it is difficult to envision Congress effectively changing and updating the statutes that grant responsibility to agencies. Adler and Walker tentatively suggest an intriguing method for weaving reauthorization into the administrative state by modifying the Administrative Procedure Act (APA). Unauthorized appropriations, as Adler and Walker note, are common these days. The APA instructs courts to set aside agency action that is “not in accordance with law.” If courts ruled that unauthorized appropriations violate the APA, or Congress modified the APA to allow judicial challenges to unauthorized appropriations, it may provide the encouragement Congress needs. This would be a significant step, and one that should not be taken lightly. But given the current state of Congress, and its lack of engagement with the administrative state, it is worth considering. Adler and Walker raise serious considerations, and although their proposed solution is predicated on the need to reform Congress, it deserves serious attention. They should be applauded for drawing our attention to the problems that emerge when Congress ducks responsibility, and for advancing a serious proposal for addressing the issue