“I can still hear you saying you would never break the chain”
Recently I got caught in a rabbit hole on the Fleetwood Mac album Rumours. One of many stories goes, while Mick Fleetwood was in the control room doing, uh, some important business accounting (your mileage may vary), Stevie Nicks wandered off to the “Sly Stone” room to noodle some ideas. There she assembled a rough version of “Dreams,” which would go on to be one of their biggest hits (back then, and again 48 years later because our pop culture engine stalled out and everything is recycled, and…nevermind).
Congress is like Ms. Nicks back then, before she got into the tex-mex restaurant game of course. She had proven her mettle as a singer, and already had respectable writing credits. The dynamics being what they were, the nominally co-equal women’s contributions were routinely sidelined. Nevertheless, she persisted, and asserted creative agency.1
Perhaps newly freed from her relationship with Lindsay, she wasn’t discovering creative power, she was re-discovering it.
Congress increasingly acts as if the Executive Branch is the bandleader and thems the rules. Quite the contrary, Congress is perfectly capable of grabbing the mic.
We treat statutes as the thing Congress does, and regulations the thing the Executive does, two distinct domains never the twain shall meet, each flowing from its own Constitutional wellspring. But one is theoretically begat by the other. It’s worse than that. News reports routinely speak of “a new law” when describing Executive actions, further conflating the direction of the policy birth order. Even worse is Executive Orders are now characterized by default as changes in law [sigh].
You did this to yourself, Congress. I’m not mad, just disappointed.
“Well, I’ve been afraid of changin’ / ’Cause I’ve built my life around you”
From the POV of most individuals and businesses this all tracks. Our Cali-cuisine restaurant doesn’t particularly care whether changes in healthcare requirements are the result of regulations or statute–I just know I better comply with “the law” (and maybe my HR company says they’re waiting on the “new rules” to update me).
The argument that Congress is not in fact co-equal with the Executive, that placement in Article I of the Constitution is an ordinal choice and not the result of drafting randomization, we can take as stipulated.
And we’ll forgo arguments around limits of delegation because wherever that line is, it won’t matter for the following: Congress should in-source agencies.
The whole conceit of delegating policymaking work to the Executive agencies is they have all the personnel and expertise. Well who do you think funded all that? In most cases, who do you think even created the dang agency?
That’s right: Congress, you should create your own Article I agencies.
Don’t be humble. You’ve done it before. We use different nomenclature: Office, Library, and Service. If you can routinely defer to entities in a whole other part of town, reporting to a whole other elected official, to “fill in the blanks” (i.e., substantive policy decisions that are binding on the public with the force of law), you can very well keep that work in house.
If you’re squeamish about “unelected bureaucrats” making decisions on behalf of the American people, fine, check the Congressional agencies’ work by having some approval mechanism, say this thing called “voting.” Codify their blank-filling exercise. Although again you seem perfectly fine with having little to no say of the same thing being done by people at arm’s length over whom you have no direct authority–only attenuated appropriation and occasional authorization acts.
So if you like, call it replacing their unelected bureaucrats with your own.
“How can I ever change things that I feel?”
Testifying in Congress a couple years ago2 I made the totally unoriginal point that they need more staff. Pick whatever baseline you want, by any measure Congress (personal office and committees) has fewer staff to do what literally no one would disagree is a more complex job. Whether it’s the novel issues now added to the old ones, the larger constituencies, or the impenetrable tech, the work is more difficult and Congress has less of the wherewithal to handle it.
The committee chair acknowledged this point but lamented that increasing funding for itself is a hard sell for Congress. Fair. But the funding doesn’t have to be additive: it should be a transfer from the Executive to Congress. It’ll take some explaining.3 If Mick Fleetwood can forgive the guy who had an affair with his wife, you can do this.
Let me anticipate three possible retorts (beyond the political sales job):
These existing Congressional “agencies” are not policymaking entities; they are advisory bodies.
What’s the difference? Congress gave the Executive versions their mandate. And while I would, for instance, be clearer about GAO’s remit and proscription of duties, Congress in many cases laid out extensive functions, structures, restrictions, and funding for incredibly Byzantine organizations (personnel reaching into the hundreds of thousands, even omitting DOD and USPS). Personally I think very highly of much of the federal workforce, but there’s nothing magical about their dedication and expertise tied to where they sit (Constitutionally speaking). And if you don’t think so fondly of that workforce, well, leaving it for someone else to directly oversee won’t help.
Very complex, detailed regulations deserve public input, i.e. the APA, a fulsome public comment process, etc.
Maybe this isn’t a likely objection. But in case it is, I should reply with “uh, what?” The APA in its very core is an endeavor to retrofit a legislative mechanism to a legislative function carried out by a non-legislative branch. The whole conceit is based on a syllogism: If we the lawmaking body are to hand over (delegate, in “law talking guy” terms) lawmaking authority to the Executive, then to do so they should follow a process (hopefully) approximating legislative input from the public. It’s all just a means to bootstrap constituent input and accountability – Congress is already built this way. There’s no need to scaffold an APA onto itself.
The Executive is supposed to administer the laws. This would usurp the Article II prerogative. Is Congress supposed to command the military?
Not a modest proposal to be sure. But it does have its limits. Congress doesn’t have to assimilate the entire agency infrastructure.
Printing and mailing Social Security checks subject to the rules set by Congress? That seems pretty administrative to me.
Investigating and apprehending human traffickers, as defined and subject to penalties set by Congress? Again, squarely in the administrative purview. Nobody wants a Congressional FBI.
Housing and preserving founding documents, while I never thought would invite political controversy, is otherwise fairly policy-invariant4
National Arboretum? Knock yourself out.
But for example, determining the contours of the hemp legalization shouldn’t, and doesn’t require, Congress laying out bullet points and expecting the Department of Agriculture et. al. to figure out workable details (Chevron or no).5
“Yesterday’s gone, yesterday’s gone”
People much smarter than myself, inclusive of judges and scholars, have wrestled with this esoteric and complicated question of how to functionally delineate between and Article I and Article II authorities. I wouldn’t presume a practicable answer is an obvious one. Instead consider things were not always as we see them now. And there’s no convincing argument that Congress is precluded from taking (rather, reclaiming) more agency for itself. In limited ways we already see the evidence.
“Why don’t you tell me what’s going on?”
Much of administrative law, Chevron, Loper Bright, et. al, is an ongoing dialectic on the granular meaning of laws passed by Congress and the President’s interpretation thereof.
What’s implicit for all of it is that unless a statute convincingly conflicts with the Constitution, the lawmakers in fact get to write them.
It may feel unfamiliar, technical details and assuming ownership and all. It requires a start. I’m reminded of the weird title track from Fleetwood Mac's Tusk. What started as a four-bar soundcheck riff ended up a double album involving Dodger Stadium, tissue box percussion, and a $1.4 million production budget (ed. in that economy?!).
Perhaps not the best example. The point is “time makes you bolder, even children get older.”
Skateboarding and cranberry juice would never be the same.
But if you think that’s hard, try convening a hearing on Zoom going longer than 40 minutes.
…but if really need be, Congress already has the largest library in the world.
I bring up this specific example because it was the first major rulemaking on which I had to oversee development and promulgation. It’s a funny story actually. My therapist says I should let it go. There’s more on that in a forthcoming piece.