The recent Law & Liberty post by James Rogers, “How to Rebalance Power between Congress and the Executive Branch,” is focused on the right question: incentives.
For many years, Congress has had strong incentives to delegate power to the executive branch, particularly to the agencies of the administrative state. This is because individual members can get credit from their constituents by enacting legislation that does nothing more than set goals.
In this mode, as Professor David Schoenbrod points out, Congress sets a goal such as clean water or clean air and tells the Environmental Protection Agency to achieve it. The major decisions—who bears the costs, whose property is regulated, and who gets the benefits—are left to an administrative agency.
When constituents complain to their senator or representative about the scope of subsequent rules and regulations, they are told, “I never voted for that; it was an out-of-control administrative agency that is causing your problem.” In this way, Congress avoids the difficult decisions entailed by the legislative process, and also much of the criticism that comes from constituents who have been adversely affected.
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