CARDOZO LAW REVIEW [Vol. 20:939 1999]
LEGISLATIVE IMPLICATIONS OF
AUTHORITY OVER REGULATIONS
William A. Niskanen*
We meet today at the right place to discuss this issue: In his
concurring opinion in A.L.A. Schechter Poultry Corp. v. United
States, Justice Benjamin Cardozo forcefully described the
industrial code provisions of the National Industrial Recovery
Act as “delegation running riot.” Would
that we had such clear thinking and language from the current United States
My task is to comment on the implications of reviving the nondelegation
doctrine for the legislative process. While my focus is on the federal
regulatory process, not the fiscal process, several themes in my remarks are
relevant to both fiscal and regulatory issues: (1) the constitutional
constraints on delegation seem very confusing; (2) as a rule, the amount and
type of delegation is that which serves Congress’ interests and does not
indicate an unusual abuse of authority by the Executive; (3) increased
delegation by Congress is an inherent result of the increase in the size
and scope of government; and (4) most measures to sort out the delegation
issue, in one direction or the other, are likely to disappoint the sponsors. To
put this issue in context, however, it is important to recognize the legal
constraints and the political incentives that bear on this process.
I. THE LAW
A part of the problem, according to the United States District Court for
the District of Columbia in the recent line item veto case, Clinton v. City
of New York, is that “[t]he line between permissible
delegations of rulemaking authority and impermissible abandonments of lawmaking
power is a thin one.” As an early court described this
distinction: “The legislature cannot delegate its power to make a law, but
it can make a law to delegate a power to determine some fact or state of things
upon which the law makes, or intends to make, its own action
depend.” A later court observed that:
The true distinction ... is between the delegation of power to make
the law, which necessarily involves a discretion as to what it shall be, and
conferring an authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done; to the latter no
valid objection can be made.
This seems to be a reasonable basis for distinguishing between making a
law and interpreting a law, even if difficult to apply in some cases.
Over time, however, this has become a distinction without a difference.
In Federal Radio Commission v. Nelson Brothers Bond & Mortgage
Co., the Court upheld a delegation based on “public
convenience, interest, or necessity,” giving the Commission almost
complete authority to interpret these terms. In most subsequent
cases, such as Mistretta v. United States, the Court has
ruled, consistently with the Hampton v. United States decision, that a
delegation is constitutional so long as Congress provides the agency with
“intelligible principles” to interpret the law. At the
other extreme, the District Court for the District of Columbia ruled in the
Clinton case that some types of legislative authority are inherently
non-delegable, but it is too early to assess the scope of this
interpretation. There is ample reason for members of Congress to be confused
about what types of authority may not be delegated to executive agencies.
On occasion, Congress has charged the President or some other officials
in an administration controlled by the other party with exceeding their fiscal
or regulatory authority. As a rule, such measures are not a response to an
unusual pattern of abuses, but are part of a more general assertion of
congressional authority. A Democratic Congress approved the Congressional
Budget and Impoundment Control Act of 1974, an act that
constrained the President’s impoundment authority, not because
Nixon’s use of that authority was unusual, but as part of a general
reassertion of congressional fiscal and war powers authority following the
Vietnam War and the Watergate scandal. In both the 104th and 105th Congresses,
Republicans promoted several rules and procedures to constrain the
President’s regulatory authority, again not because President
Clinton’s use of that authority was unusual, but as part of a general
assertion of the authority of Congress under Republican control for the first
time in forty years.
The rhetoric of these occasional efforts to reassert congressional
authority is full of charges that officials in the executive branch have
exceeded their delegated authority, for which there is often ample evidence. A
broader perspective, however, would reveal that these efforts are part of the
games that politicians play. The most important insight about this behavior is
that substantial delegation of fiscal and regulatory authority usually
serves the interests of both Congress and the President by allowing both to
play their expected roles. Some selective fiscal control by the Executive
permits members of Congress to appear generous to specific constituencies and
the President to appear fiscally responsible to the broader constituency.
President Reagan characteristically made a point by telling a story: While
governor of California, he related, he was often visited by Republican members
of the Californian Assembly who would ask him for assurances that he would veto
a bill so that they could vote for it.
The behavior of one branch of the government is not independent
of the authority of another branch. That is the reason why the differences
among states in a governor’s line item veto authority have no significant
effect on state spending per capita. That is the reason North Carolina has
usually had a responsible state budget, although the governor (until recently)
had no authority for any type of veto.
A similar type of game affects regulatory authority. Congress often
approves very general regulatory legislation — leaving the regulatory
agencies with broad discretion to define the law by the rules they promulgate.
This permits members of Congress to play both sides of the street — to
take credit for the presumed benefits of the regulation and to blame the
agencies for the costs of meeting specific rules. The President accepts the
role of regulatory cop in exchange for much more executive discretion on
regulations than on fiscal issues.
Another important political condition affects the amount and type of
delegation — the scope and scale of the federal government. Federal
spending and regulation have increased by several orders of magnitude since the
1920s with the erosion of the constitutional limits on the powers of the
government. The size of Congress and the length of a congressional session,
however, have been roughly constant. This has reduced the potential for
Congress to formulate detailed legislation on many issues or to monitor
performance under such legislation. This has led Congress, especially on
regulatory issues, to approve “symbolic” legislation, delegating to
the administration the power to fill in the details. The wetlands preservation
program, for example, was established without any specific authority from the
initial Clean Water Act. Similarly, the Americans with
Disabilities Act leaves it to the Equal Employment Opportunity
Commission and the courts to interpret the definition of disability, reasonable
accommodation, and undue hardship. For what, to many, seems like an
unconstitutional delegation of legislative authority has been the almost
unavoidable institutional response to an unconstitutional expansion of the
powers of the federal government. Congress cannot control and monitor a
government for which the budget is now over twenty percent of the Gross
Domestic Product and imposes regulatory costs of over $500 billion by the same
techniques and in the same detail as was the case prior to the 1930s. Undue
delegation is a direct consequence of the undue expansion of governmental
powers, and it is not obvious that the nondelegation doctrine can be revived
without reviving the more important principle that a government may not define
its own powers. One should not be surprised that both the limits on
governmental powers and the nondelegation doctrine were almost fatally weakened
in 1936 by United States v. Butler.
III. CURRENT CONGRESSIONAL PROPOSALS TO ASSERT REGULATORY
For several years now, Congress has tried to constrain regulation by
changing the regulatory review process rather than by revising the major
regulatory legislation — for the most part without success. Several minor
measures, however, were approved. A 1995 law requires the Congressional Budget
Office (“CBO”) to estimate the costs of major new mandates on state
or local governments or on the private sector. The regulatory
agencies, in turn, are required to prepare a benefit-cost analysis of major new
regulations and to either choose the “least burdensome” alternative
or explain why this alternative was not adopted. This act generally reenforced
the provisions of an executive order issued by President Clinton in
1993. A 1996 act required the Office of Management and Budget
(“OMB”) to submit to Congress an estimate of the benefits and costs
of all existing major rules. Under another 1996 act, Congress
has sixty legislative days to review a major new regulation during which period
it may enact a joint resolution of disapproval as a new bill that is then
subject to a presidential veto; there has been use of this new authority to
date. None of these measures has had any identifiable effect on the scope or
character of new regulations. A more comprehensive regulatory reform act,
promoted by Senators Robert Dole and Bennett Johnston, failed to pass the
Senate, although a somewhat weaker bill had been approved by the House.
As of this symposium, there were three regulatory process bills before
Congress that may be addressed in 1999. The Regulatory Improvement
Act, promoted by Senators Fred Thompson and Carl Levin, would
require agencies to conduct a benefit-cost analysis and, where relevant, a risk
assessment on all major new rules, and conduct an independent peer review of
these rules. OMB is required to develop broad guidelines for these analyses,
and judicial review would be limited to the issue of whether the agency had
conducted the required analyses. An amendment to this act, promoted by Senator
Sam Brownback, would provide for a sixty-day expedited review of all major new
rules with a positive vote by Congress required for the rule to be
effective. This amendment would change the default rule, which now makes a
proposed new regulation effective unless Congress approves a resolution of
disapproval, to a new rule that each major new regulation must be
approved by Congress. The Brownback Amendment, in effect, would
transform the regulatory agencies into rule-drafting and rule-enforcing
agencies but would limit their rule-making authority to minor rules. A third
measure, promoted by Representative Sue Kelly, would create a Congressional
Office of Regulatory Analysis to support the congressional review of all
regulations and the analyses conducted by the regulatory agencies. As of the
end of the 105th Congress, there was no final action on these bills.
My expectation is that something like the Thompson-Levin bill will be
approved someday, despite the expected grumbling about all the new paperwork
that it would impose on the agencies. I doubt that Congress is ready to approve
the Brownback Amendment, and I am not qualified to judge whether it would pass
constitutional muster. If Congress is serious about reviewing regulations,
something like the new office proposed by Representative Kelly would be
More important, the primary effect of this process legislation, short of
the Brownback Amendment, would probably be an increased demand for benefit-cost
and risk assessment analysts, with little effect on the scope and character of
new rules. A Congress that attempts to substitute process for substantive
legislation is unlikely to use the additional analyses and the new process to
make substantive decisions. The costly, new Environmental Protection Agency
rules on fine particulates and ozone, for example, should have provoked a
congressional review under the 1996 legislation but did not.
On the other hand, the 104th Congress approved the most important
legislation in sixty years in three areas: agriculture, telecommunications, and
welfare. None of these new laws is ideal, and each will have to be revisited.
But these important changes were achieved by changing the substantive
legislation rather than by requiring the agencies to perform benefit-cost
analyses. A similarly important bank regulation reform bill is likely to be
approved in 1999. Congress does not seem ready, however, to address most of the
substantive legislation on health, safety, and the environment, and I do not
expect the possible changes in the regulatory process to affect this body of
The delegation of legislative authority to executive agencies is clearly
unconstitutional and should offend those who care about the Constitution. Such
delegation, however, is an inherent characteristic of big government. I do not
expect the attempts to revive the nondelegation doctrine to have much of an
effect on the scope and character of the federal budget and regulations. On the
other hand, a serious attempt to restore the doctrine of limited, enumerated
powers is necessary to reduce the incentive for Congress to delegate its
legislative authority. In the meantime, the best that can be expected is to
allow the Executive to make a lot of minor fiscal and regulatory decisions, but
to insist that a positive approval by Congress is necessary for all
major fiscal and regulatory decisions. That is a challenge that merits serious
attention, however messy the process.
* Chairman, Cato Institute in Washington, D.C. The author is an
 295 U.S. 495 (1935).
 National Industrial Recovery Act of 1933, ch. 90, §
3, 48 Stat. 198.
 295 U.S. at 553.
 985 F. Supp. 168 (D.D.C. 1998).
Id. at 180.
 Field v. Clark, 143 U.S. 649, 694 (1892).
 Hampton v. United States, 276 U.S. 394, 407 (1928)
(quoting Cincinnati, Wilmington & Zanesville R.R. Co. v. Commissioners, 1
Ohio St. 77, 88 (1852)).
 289 U.S. 266 (1933).
Id. at 279 (discussing the Radio Act of 1927, ch.
169, § 4(c)-(d), 44 Stat. 1166 (repealed 1934)).
 488 U.S. 361 (1989).
Id. at 372.
See 985 F. Supp. 168, 181 (D.D.C. 1998).
 Pub. L. No. 93-344, 88 Stat. 297 (codified at 2 U.S.C.
§§ 105, 621-688 (1982) and parts of 31 U.S.C. (1976)).
See N.C. GEN. STAT. § 22 (1997).
 33 U.S.C. § 1251 (1994); see Jeff Civins,
Environmental Law Concerns in Real Estate Transactions, 43 SW. L.J. 819,
825 (1990) (“Section 404 of the [Clean Water Act], though a pollution
permit program, operates as a de facto wetlands preservation program by
restricting development in wetlands areas.” (footnote omitted).
 42 U.S.C. §§ 12,101-12,213 (1994).
 297 U.S. 1 (1936).
See 2 U.S.C. § 602 (1994).
See Exec. Order No. 12,857, 58 Fed. Reg. 42,181
See 2 U.S.C. § 661(b).
 Riegle Community Development and Regulatory Improvement
Act of 1994, Pub. L. No. 103-325, 108 Stat. 2160 (codified in scattered
sections of 12 U.S.C., 15 U.S.C., 31 U.S.C., and 42 U.S.C.).
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