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This is a response to an article by Jonathan Adler and Chris Walker. In Delegation and Time, Adler and Walker introduce an important new way of thinking about broad congressional delegations of power. After reviewing the traditional arguments against broad congressional delegations of power they note that broad delegations increasingly raise a serious temporal problem.

In their words, “broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that was wholly unanticipated by the enacting Congress or could no longer receive legislative support.” They also note that this temporal problem “has taken on added significance in the current era of congressional inaction.” Adler and Walker illustrate this temporal problem well by referring to the efforts of the Federal Communications Commission to use the Communications Act of 1934 to regulate the internet and the efforts of the Environmental Protection Administration to use the Clean Air Act of 1972 to mitigate climate change.

I agree with the concerns that Adler and Walker express. I would expand them to include broad congressional delegations of power to the president that are being applied in ways that Congress never contemplated and would not support today. President Trump’s use of the broad authority granted the president in the Trade Expansion Act of 1962 and his use of the broad authority granted the president under the National Emergencies Act of 1976 and over one hundred other “emergency” statutes illustrate Adler and Walker’s temporal concerns particularl

President Trump has relied on the Trade Expansion Act as the basis for his imposition of massive tariffs as part of his trade war against many of our trading partners. He has relied on the Emergencies Act to reallocate funds from other uses to construction of the border wall that Congress has consistently refused to fund. Both of those congressional grants of power have no apparent limit.

The Supreme Court recently rejected challenges to the validity of President Trump’s use of both of those powers. Immediately after the Court refused to consider a challenge to the president’s use of the Emergencies Act to fund the border wall, one of the Democratic candidates for president announced that, if elected, he would invoke the Emergencies Act as the basis for spending trillions of dollars and imposing draconian limits on the use of cars and trucks in an effort to mitigate climate change. President Trump responded to the apparent green lights from the Court by increasing the tariffs he imposed on goods from China and by directing U.S. companies to cease doing business in China.

Adler and Walker urge Congress to respond to the temporal problem created by broad congressional grants of power by making greater use of sunset provisions in statutes that confer broad power on agencies. In their view, including a sunset provision in a statute that grants broad power to an agency would change congressional incentives in ways that would induce Congress to re-evaluate the powers granted in such a statute and to revise them in ways that both update them and reduce the degree of discretion the agency has to interpret the statute in ways that Congress did not intend. Congressional actions of that type would address effectively both the political legitimacy and the temporal problemsthat are created by broad congressional grants of power to agencies. They refer to environmental regulation and immigration as contexts in which it would be particularly desirable to give Congress the incentive to re-evaluate and revise broad statutory grants of power by making them temporary.

I disagree with Adler and Walker on one important point. I do not believe that adding sunset provisions to statutes that grant broad power to agencies would provide incentives sufficient to induce Congress to reconsider and to revise those statutes. Congress lacks the institutional capability to take those actions. In most circumstances, congressional impotence would create a situation in which broad grants of power to agencies expire and are not replaced with any statute that fills the resulting void in federal power to address important issues like air quality, climate change, immigration or regulation of the internet.

In section I of this response, I summarize the longstanding reasons why Congress has little choice but to respond to a major problem by delegating broad power to an agency to address the problem. I then describe some of the examples of the costly mistakes that Congress has made when it decided not to confer broad power on an agency but instead to address a regulatory problem by making important decisions itself. In part II, I describe the changes in the political environment that have created the state of near complete congressional impotence that exists today and suggest ways in which we might be able to change the incentives of members of Congress to restore some ability to legislate. In section III, I suggest ways in which courts might be able to reduce the political legitimacy and temporal problems that are created by broad congressional delegations of power to the executive branch.

GW Paper Series

GWU Law School Public Law Research Paper No. 2019-57; GWU Legal Studies Research Paper No. 2019-57

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