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Congress and the New Administrative State
By Adam J. White
Abstract
Congress delegates immense power to agencies, but when Congress delegates such broad power, it should ensure that checks and balances guide and limit the agency’s exercise of that power. As Congress commits ever-greater powers to ever-less-accountable agencies, including agencies created by Dodd–Frank and the Affordable Care Act, it can also impose accountability through its other oversight powers—namely, oversight hearings backed by the force of Congress’s power over appropriations and appointments. Proposals such as the REINS Act and the Regulatory Accountability Act would enhance checks and balances against regulatory overreach. To restore limits in the long run, Congress should narrow overbroad delegations, restore checks and balances to agency structure, and codify administrative procedures that enhance those checks and balances.
The administrative state begins with Congress. As the Supreme Court has observed, “an agency literally has no power to act…unless and until Congress confers power upon it.”[1]
Congress delegates immense power to regulators, but according to the Supreme Court, Congress’s delegation of power to an agency will pass constitutional muster so long as Congress specifies an “intelligible principle” to guide the agency’s exercise of discretion.
That’s the “nondelegation doctrine,” and it’s a relatively low hurdle. The Court itself observed that “in the history of the Court we have found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy” with virtually no limits.[3] Both of those statutes were struck down in 1935; so as Harvard law professor and former Administrator of the Office of Information and Regulatory Affairs Cass Sunstein once remarked, “we might say” that the nondelegation rule “has had one good year, and 211 bad ones (and counting).”[4]
Professor Sunstein himself admits that it’s really more nuanced than that,[5] and appellate courts have used the nondelegation doctrine to strike down statutes or to construe statutes narrowly, including one significant case last year.[6] But the basic point is sound: The nondelegation doctrine can’t singlehandedly save us from regulatory excess.
The Framers gave us a system premised upon the branches checking and balancing one another—ambition countering ambition, as Madison put it.[29 ]So how did the executive branch and the administrative state succeed in amassing such broad, unchecked power?
There are many reasons,[30] but today’s report highlights an important one: By passing large, open-ended statutes such as Dodd–Frank and the Affordable Care Act, lawmakers can “claim credit for ‘doing something’ while evading blame for specific regulations.”[31]
This is, unfortunately, not a new problem.[32] I think that the late John Hart Ely put it best when he wrote: “It is common to style this shift [from Congress to the executive branch] a usurpation, but that oversimplifies to the point of misstatement”; Congress “ceded the ground without a fight. In fact…the legislative surrender was a self-interested one: Accountability is pretty frightening stuff.”
It seems no one really has any problem with how far a President pushes the use of executive orders as long as they belong to the party you back.
I have no problem with E/O, from ANYONE, think it's not constitutional? Bring it to court!
All the impeachment talk were getting goes back to the President and executive orders and how he has used them so here is the question if you could draw the line on the use of executive orders by the President where would you draw it at? When you draw this line keep in mind it applies to all who will become President not just the ones you like and agree with.
And just think, the lame law suit against for President Obama's use of Executive Orders (less than the shrub btw) fell apart after the House Republicans, after rejecting the Boner's Immigration Reform Bill, said that "President Obama can use Administrative Actions (Executive Orders) on Immigration Reform.
No.There is no line, which is intentional. The role of the Executive was never clearly defined because no one was sure what he might be called upon to do. It's a balance thing, not a hard and fast rule thing.
The question is if you could draw one what would it be. Given the fact that Presidents both left and right keep expanding the use of executive orders don't you think it might be a good idea to have some clearly defined restrictions on them?
What I think is we need to start getting shit done again. Whatever that requires we'd better decide upon, and soon...
Actually if both sides would start working together instead of against each other...that would get things done. Only thing they really care about is their job...nots whats best for America.
In a time where congress is "literally" the most do-nothing congress in history...there is almost a necessity of EO's in order to let the federal government have some kind of self-correction.
Heck just this week the Republicans were insisting Obama "act alone" on the border crisis, simply because congress couldn't come up with any answers to it.
One congress becomes reasonable again then the need for EO's might decrease. Frankly I'm amazed we've made it this far without there being a need for more EO's.
"Obama's EO's are becoming more and more sweeping legislative actions that by-pass Congress completely - in the vein of a King."
Cite the number of just ONE EO and its topic you falsely claim is a legislative action!
Sure no problem! How about making changes to LAWS (The ACA for example) without amendments from Congress....Good enough for you?
How about making changes (retroactively) to the Immigration laws that have stood for the last 50 or so years - without Congressional amendment? Although I don't believe that he has done anything yet - expect him to circumvent Congress (AND THE LAW) this week.
That work for you? You can't have it both ways. Either he is breaking existing laws by fiat - or he isn't. Which is it going to be? Or, are you going to Grover Cleveland as another president who did it?
Excusing bad behaviors by pointing to OTHER bad behavios is no way to go through life...
At the same time, Congress has also given the executive branch some flexibility in determining what it means to faithfully execute a law. Its hard, after all, for legislators to predict every thorny issue that will come up in the process of turning laws into regulations.
In 1946, legislators passed the Administrative Procedures Act, which governs the way that regulatory agencies carry out legislation. That law both gives agencies discretion in setting up laws, but holds them accountable for carrying out Congresss intentions.
Under the Administrative Procedure Act precedent, the courts can compel agencies that have been unreasonably delayed, says Simon Lazarus, a senior counsel at the Constitutional Accountability Center. Those tend to involve delays that have gone on for years.
Courts have frequently grappled with issues of what counts as an unreasonable delay and, as many experts will tell you, they still havent set a bright line between executive discretion and disobedience.
...In Congressional testimony, Treasury makes a counter argument: That the agency is by no means dispensing with the law -- they still plan to implement it -- but rather making an adjustment, well within executive discretion. The agency says this authority stems from its power to prescribe all needful rules and regulations for the enforcement of this title.
Moreover, this is something that the agency has done more than a dozen times before, without a peep from Congress.
The White House keeps changing Obamacare. Is that legal? - The Washington Post
In a time where congress is "literally" the most do-nothing congress in history...there is almost a necessity of EO's in order to let the federal government have some kind of self-correction.
Heck just this week the Republicans were insisting Obama "act alone" on the border crisis, simply because congress couldn't come up with any answers to it.
One congress becomes reasonable again then the need for EO's might decrease. Frankly I'm amazed we've made it this far without there being a need for more EO's.
200+ HRs in Harry Reid's trashcan
House passed a border bill. Senate took vacation.
Obama can wait until both Houses are back.He's waited this long
Sure no problem! How about making changes to LAWS (The ACA for example) without amendments from Congress....Good enough for you?
How about making changes (retroactively) to the Immigration laws that have stood for the last 50 or so years - without Congressional amendment? Although I don't believe that he has done anything yet - expect him to circumvent Congress (AND THE LAW) this week.
That work for you? You can't have it both ways. Either he is breaking existing laws by fiat - or he isn't. Which is it going to be? Or, are you going to Grover Cleveland as another president who did it?
Excusing bad behaviors by pointing to OTHER bad behavios is no way to go through life...
At the same time, Congress has also given the executive branch some flexibility in determining what it means to faithfully execute a law. Its hard, after all, for legislators to predict every thorny issue that will come up in the process of turning laws into regulations.
In 1946, legislators passed the Administrative Procedures Act, which governs the way that regulatory agencies carry out legislation. That law both gives agencies discretion in setting up laws, but holds them accountable for carrying out Congresss intentions.
Under the Administrative Procedure Act precedent, the courts can compel agencies that have been unreasonably delayed, says Simon Lazarus, a senior counsel at the Constitutional Accountability Center. Those tend to involve delays that have gone on for years.
Courts have frequently grappled with issues of what counts as an unreasonable delay and, as many experts will tell you, they still havent set a bright line between executive discretion and disobedience.
...In Congressional testimony, Treasury makes a counter argument: That the agency is by no means dispensing with the law -- they still plan to implement it -- but rather making an adjustment, well within executive discretion. The agency says this authority stems from its power to prescribe all needful rules and regulations for the enforcement of this title.
Moreover, this is something that the agency has done more than a dozen times before, without a peep from Congress.
The White House keeps changing Obamacare. Is that legal? - The Washington Post
9-0 SCOTUS.
Lawsuit by the House of Represenatives.
Guess we'll see, won't we?
Congress and the New Administrative State
Congress and the New Administrative State
By Adam J. White
Abstract
Congress delegates immense power to agencies, but when Congress delegates such broad power, it should ensure that checks and balances guide and limit the agencys exercise of that power. As Congress commits ever-greater powers to ever-less-accountable agencies, including agencies created by DoddFrank and the Affordable Care Act, it can also impose accountability through its other oversight powersnamely, oversight hearings backed by the force of Congresss power over appropriations and appointments. Proposals such as the REINS Act and the Regulatory Accountability Act would enhance checks and balances against regulatory overreach. To restore limits in the long run, Congress should narrow overbroad delegations, restore checks and balances to agency structure, and codify administrative procedures that enhance those checks and balances.
The administrative state begins with Congress. As the Supreme Court has observed, an agency literally has no power to act unless and until Congress confers power upon it.[1]
Congress delegates immense power to regulators, but according to the Supreme Court, Congresss delegation of power to an agency will pass constitutional muster so long as Congress specifies an intelligible principle to guide the agencys exercise of discretion.
Thats the nondelegation doctrine, and its a relatively low hurdle. The Court itself observed that in the history of the Court we have found the requisite intelligible principle lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy with virtually no limits.[3] Both of those statutes were struck down in 1935; so as Harvard law professor and former Administrator of the Office of Information and Regulatory Affairs Cass Sunstein once remarked, we might say that the nondelegation rule has had one good year, and 211 bad ones (and counting).[4]
Professor Sunstein himself admits that its really more nuanced than that,[5] and appellate courts have used the nondelegation doctrine to strike down statutes or to construe statutes narrowly, including one significant case last year.[6] But the basic point is sound: The nondelegation doctrine cant singlehandedly save us from regulatory excess.
The Framers gave us a system premised upon the branches checking and balancing one anotherambition countering ambition, as Madison put it.[29 ]So how did the executive branch and the administrative state succeed in amassing such broad, unchecked power?
There are many reasons,[30] but todays report highlights an important one: By passing large, open-ended statutes such as DoddFrank and the Affordable Care Act, lawmakers can claim credit for doing something while evading blame for specific regulations.[31]
This is, unfortunately, not a new problem.[32] I think that the late John Hart Ely put it best when he wrote: It is common to style this shift [from Congress to the executive branch] a usurpation, but that oversimplifies to the point of misstatement; Congress ceded the ground without a fight. In fact the legislative surrender was a self-interested one: Accountability is pretty frightening stuff.
Simply put checks and balances by the other branches are indispensable.
It seems no one really has any problem with how far a President pushes the use of executive orders as long as they belong to the party you back.
I have no problem with E/O, from ANYONE, think it's not constitutional? Bring it to court!
Isn't that what the Speaker is doing? And aren't you and the rest of the "Obama" sheeple making fun of them for it?
Never mind.
All the impeachment talk were getting goes back to the President and executive orders and how he has used them so here is the question if you could draw the line on the use of executive orders by the President where would you draw it at? When you draw this line keep in mind it applies to all who will become President not just the ones you like and agree with.
And just think, the lame law suit against for President Obama's use of Executive Orders (less than the shrub btw) fell apart after the House Republicans, after rejecting the Boner's Immigration Reform Bill, said that "President Obama can use Administrative Actions (Executive Orders) on Immigration Reform.
Using EO in a time of crisis is not the same as conveniently delaying a law that one signed but then found to not be politically expedient for mid term elections.
But such logic escapes you.
I like the way you make fun of those you disagree with by taking their names and changing them for a laugh...Like Boner...and Shrub.
When I was about 7 years old, my mom taught me that such was childish and hurtful...So I stopped.
No.The question is if you could draw one what would it be. Given the fact that Presidents both left and right keep expanding the use of executive orders don't you think it might be a good idea to have some clearly defined restrictions on them?
What I think is we need to start getting shit done again. Whatever that requires we'd better decide upon, and soon...
In a time where congress is "literally" the most do-nothing congress in history...there is almost a necessity of EO's in order to let the federal government have some kind of self-correction.
Heck just this week the Republicans were insisting Obama "act alone" on the border crisis, simply because congress couldn't come up with any answers to it.
One congress becomes reasonable again then the need for EO's might decrease. Frankly I'm amazed we've made it this far without there being a need for more EO's.
200+ HRs in Harry Reid's trashcan
House passed a border bill. Senate took vacation.
Obama can wait until both Houses are back.He's waited this long
Sure no problem! How about making changes to LAWS (The ACA for example) without amendments from Congress....Good enough for you?
How about making changes (retroactively) to the Immigration laws that have stood for the last 50 or so years - without Congressional amendment? Although I don't believe that he has done anything yet - expect him to circumvent Congress (AND THE LAW) this week.
That work for you? You can't have it both ways. Either he is breaking existing laws by fiat - or he isn't. Which is it going to be? Or, are you going to Grover Cleveland as another president who did it?
Excusing bad behaviors by pointing to OTHER bad behavios is no way to go through life...
At the same time, Congress has also given the executive branch some flexibility in determining what it means to faithfully execute a law. Its hard, after all, for legislators to predict every thorny issue that will come up in the process of turning laws into regulations.
In 1946, legislators passed the Administrative Procedures Act, which governs the way that regulatory agencies carry out legislation. That law both gives agencies discretion in setting up laws, but holds them accountable for carrying out Congresss intentions.
Under the Administrative Procedure Act precedent, the courts can compel agencies that have been unreasonably delayed, says Simon Lazarus, a senior counsel at the Constitutional Accountability Center. Those tend to involve delays that have gone on for years.
Courts have frequently grappled with issues of what counts as an unreasonable delay and, as many experts will tell you, they still havent set a bright line between executive discretion and disobedience.
...In Congressional testimony, Treasury makes a counter argument: That the agency is by no means dispensing with the law -- they still plan to implement it -- but rather making an adjustment, well within executive discretion. The agency says this authority stems from its power to prescribe all needful rules and regulations for the enforcement of this title.
Moreover, this is something that the agency has done more than a dozen times before, without a peep from Congress.
The White House keeps changing Obamacare. Is that legal? - The Washington Post
9-0 SCOTUS.
Lawsuit by the House of Represenatives.
Guess we'll see, won't we?
Congress and the New Administrative State
Congress and the New Administrative State
By Adam J. White
Abstract
Congress delegates immense power to agencies, but when Congress delegates such broad power, it should ensure that checks and balances guide and limit the agency’s exercise of that power. As Congress commits ever-greater powers to ever-less-accountable agencies, including agencies created by Dodd–Frank and the Affordable Care Act, it can also impose accountability through its other oversight powers—namely, oversight hearings backed by the force of Congress’s power over appropriations and appointments. Proposals such as the REINS Act and the Regulatory Accountability Act would enhance checks and balances against regulatory overreach. To restore limits in the long run, Congress should narrow overbroad delegations, restore checks and balances to agency structure, and codify administrative procedures that enhance those checks and balances.
The administrative state begins with Congress. As the Supreme Court has observed, “an agency literally has no power to act…unless and until Congress confers power upon it.”[1]
Congress delegates immense power to regulators, but according to the Supreme Court, Congress’s delegation of power to an agency will pass constitutional muster so long as Congress specifies an “intelligible principle” to guide the agency’s exercise of discretion.
That’s the “nondelegation doctrine,” and it’s a relatively low hurdle. The Court itself observed that “in the history of the Court we have found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy” with virtually no limits.[3] Both of those statutes were struck down in 1935; so as Harvard law professor and former Administrator of the Office of Information and Regulatory Affairs Cass Sunstein once remarked, “we might say” that the nondelegation rule “has had one good year, and 211 bad ones (and counting).”[4]
Professor Sunstein himself admits that it’s really more nuanced than that,[5] and appellate courts have used the nondelegation doctrine to strike down statutes or to construe statutes narrowly, including one significant case last year.[6] But the basic point is sound: The nondelegation doctrine can’t singlehandedly save us from regulatory excess.
The Framers gave us a system premised upon the branches checking and balancing one another—ambition countering ambition, as Madison put it.[29 ]So how did the executive branch and the administrative state succeed in amassing such broad, unchecked power?
There are many reasons,[30] but today’s report highlights an important one: By passing large, open-ended statutes such as Dodd–Frank and the Affordable Care Act, lawmakers can “claim credit for ‘doing something’ while evading blame for specific regulations.”[31]
This is, unfortunately, not a new problem.[32] I think that the late John Hart Ely put it best when he wrote: “It is common to style this shift [from Congress to the executive branch] a usurpation, but that oversimplifies to the point of misstatement”; Congress “ceded the ground without a fight. In fact…the legislative surrender was a self-interested one: Accountability is pretty frightening stuff.”
Simply put checks and balances by the other branches are indispensable.
Well that's ONE way right wing think tanks are going to try to gut Gov't small enough to drown it in a tub
In a time where congress is "literally" the most do-nothing congress in history...there is almost a necessity of EO's in order to let the federal government have some kind of self-correction.
Heck just this week the Republicans were insisting Obama "act alone" on the border crisis, simply because congress couldn't come up with any answers to it.
One congress becomes reasonable again then the need for EO's might decrease. Frankly I'm amazed we've made it this far without there being a need for more EO's.
200+ HRs in Harry Reid's trashcan
House passed a border bill. Senate took vacation.
Obama can wait until both Houses are back.He's waited this long
Indeed, this is what happens today. The House has sent hundreds of bills to Harry Reid for Senate action. They end up in the trash can and the Liberal Nazis blame the Republicans.
That gutter trash "stroke on a stick" Harry Reid should love the Senate Cloak Room after November. That's the only damned thing HE will be in charge of then.....
In a time where congress is "literally" the most do-nothing congress in history...there is almost a necessity of EO's in order to let the federal government have some kind of self-correction.
Heck just this week the Republicans were insisting Obama "act alone" on the border crisis, simply because congress couldn't come up with any answers to it.
One congress becomes reasonable again then the need for EO's might decrease. Frankly I'm amazed we've made it this far without there being a need for more EO's.
At the same time, Congress has also given the executive branch some flexibility in determining what it means to faithfully execute a law. Its hard, after all, for legislators to predict every thorny issue that will come up in the process of turning laws into regulations.
In 1946, legislators passed the Administrative Procedures Act, which governs the way that regulatory agencies carry out legislation. That law both gives agencies discretion in setting up laws, but holds them accountable for carrying out Congresss intentions.
Under the Administrative Procedure Act precedent, the courts can compel agencies that have been unreasonably delayed, says Simon Lazarus, a senior counsel at the Constitutional Accountability Center. Those tend to involve delays that have gone on for years.
Courts have frequently grappled with issues of what counts as an unreasonable delay and, as many experts will tell you, they still havent set a bright line between executive discretion and disobedience.
...In Congressional testimony, Treasury makes a counter argument: That the agency is by no means dispensing with the law -- they still plan to implement it -- but rather making an adjustment, well within executive discretion. The agency says this authority stems from its power to prescribe all needful rules and regulations for the enforcement of this title.
Moreover, this is something that the agency has done more than a dozen times before, without a peep from Congress.
The White House keeps changing Obamacare. Is that legal? - The Washington Post
9-0 SCOTUS.
Lawsuit by the House of Represenatives.
Guess we'll see, won't we?
Actually not.
Boehner's 'lawsuit' will be dismissed by a Federal judge because the Speaker lacks standing, because the president didn't 'abuse' his authority, and because the courts do not involve themselves in disputes between the Executive Branch and Legislative Branch per the political question doctrine.
In a time where congress is "literally" the most do-nothing congress in history...there is almost a necessity of EO's in order to let the federal government have some kind of self-correction.
Heck just this week the Republicans were insisting Obama "act alone" on the border crisis, simply because congress couldn't come up with any answers to it.
One congress becomes reasonable again then the need for EO's might decrease. Frankly I'm amazed we've made it this far without there being a need for more EO's.
200+ HRs in Harry Reid's trashcan
House passed a border bill. Senate took vacation.
Obama can wait until both Houses are back.He's waited this long
200 bills? lol. NONE having a chance to get by in the BIPARTISAN SENATE . Weird right?
200+ HRs in Harry Reid's trashcan
House passed a border bill. Senate took vacation.
Obama can wait until both Houses are back.He's waited this long
200 bills? lol. NONE having a chance to get by in the BIPARTISAN SENATE . Weird right?
The BIPARTISAN SENATE can't pass any of the 200 bills if the Majority Leader won't call them to the floor, can it? Is the Majority Leader BIPARTISAN?
These Nazis are happy to leave those facts out. NOTHING comes to the floor of the Senate for a vote unless Howdy Doody Reid allows it - and he's having none of it.
