Next week I will be presenting my Legislating in the Shadows project as part of a research roundtableat George Mason’s new Center for the Study of the Administrative State, which is directed by Neomi Rao. To mark the occasion, I thought I’d highlight Professor Rao’s terrific new article Administrative Collusion: How Delegation Diminishes the Collective Congress, which was recently published in theNYU Law Review. [This article has long been in my AdLaw Bridge Series queue.]
As I just taught my students in Legislation and Regulation, the Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. The conventional model for understanding the relationship between Congress and the administrative state—as positive political theorists have long explored—is to view it in principal-agent terms. In other words, Congress delegates authority to federal agencies, and those agencies are expected to faithfully implement congressional wishes. As many scholars have noted (myself included), however, this principal-agent model is too simplistic. For example, federal agencies have at least two principals—Congress and the President—and their behavior sometimes suggests that agencies are principals.
Professor Rao attacks lawmaking delegation and the conventional principal-agent model from another angle: that Congress does not always act as a collective principal. The abstract from her article nicely summarizes her argument:
This Article identifies a previously unexplored problem with the delegation of legislative power by focusing not on the discretion given to executive agencies, but instead on how delegations allow individual congressmen to control administration. Delegations create administrative discretion, discretion that members of Congress can influence through a variety of formal and informal mechanisms. Members have persistent incentives for delegation to agencies, because it is often easier to serve their interests through shaping administration than by passing legislation. To understand the particular problem of delegation, I introduce the concept of the “collective Congress.” Collective decisionmaking is a fundamental characteristic of the legislative power. The collective Congress serves an important separation of powers principle by aligning the ambitions of legislators with the power of Congress as an institution. Although members represent distinct interests, the Constitution allows members of Congress to exercise power only collectively and specifically precludes them from exercising any type of individual or executive power. Delegation, however, provides opportunities for individual legislators to influence administration and poses a serious separation of powers concern by fracturing the collective Congress. This insight undermines the conventional view that delegations will be self-correcting because Congress will jealously guard its lawmaking power from the executive. Instead, members of Congress will often prefer to collude and to share administrative power with the executive. As a result, delegation destroys the Madisonian checks and balances against excessive delegation. This structural failure suggests a need to reconsider judicial enforcement of the nondelegation doctrine and to implement political reforms to realign Congress with its collective power.
The full article (available here) is provocative and definitely worth a read. In Part V of the article, Professor Rao sketches out a number steps that courts and the political branches could take to reign in lawmaking delegation. I look forward to future work where she and others build on those recommendations, as I have yet to find a way to reinvigorate an administrable nondelegation doctrine. Hopefully Professor Rao’s latest article will help spark further discussion and innovation.