Congress’s Erosion of Authority

Congress’s Erosion of Authority: The Administrative State’s Growth and Neglected Oversight

One of the fundamental pillars of the United States’ democratic system is the separation of powers, with Congress serving as the legislative branch responsible for making laws. However, over the years, Congress has ceded significant authority to the Executive branch, leading to the unchecked growth of the administrative state and a neglect of its oversight responsibilities. This article examines how poorly written laws and a lack of regulatory oversight have allowed the Executive branch to expand beyond constitutional constraints, undermining the balance of power envisioned by the Founding Fathers.

The Rise of the Administrative State

The growth of the administrative state in the United States can be attributed to several factors, including the delegation of broad powers by Congress, the proliferation of federal agencies, and the reliance on rulemaking to address policy issues. This section will delve into these factors and provide specific examples to illustrate the expansion of the administrative state beyond constitutional constraints.

• Delegation of Broad Powers by Congress

One significant factor contributing to the rise of the administrative state is Congress’s tendency to delegate broad powers to executive agencies through legislation. Rather than providing specific instructions, Congress often grants agencies significant discretion to interpret and implement laws. This delegation allows agencies to make detailed regulations that have the force of law, effectively expanding their authority beyond what was intended by Congress.

For instance, the Clean Air Act of 1970 tasked the Environmental Protection Agency (EPA) with establishing and enforcing air quality standards. While the intent of the law was to address the problem of air pollution, Congress provided the EPA with broad discretion in determining the specifics of these standards. This led to the creation of complex regulations, such as the cap-and-trade system for greenhouse gas emissions, which has far-reaching economic and environmental implications.

• Proliferation of Federal Agencies

Over time, the number of federal agencies has significantly increased, leading to a more extensive administrative state. These agencies, staffed with unelected bureaucrats, have been granted regulatory and enforcement powers by Congress. Examples of such agencies include the Federal Communications Commission (FCC), the Food and Drug Administration (FDA), and the Internal Revenue Service (IRS).

The FCC, for instance, exercises substantial control over the telecommunications industry, including regulating broadcast licenses, internet access, and spectrum allocation. Its rulemaking authority allows it to shape policies that impact millions of Americans. Similarly, the FDA has broad regulatory authority over food, drugs, and medical devices, with the ability to issue rules that have a profound impact on public health and safety.

• Reliance on Rulemaking

Rulemaking, the process by which federal agencies establish regulations, has become a primary method for implementing policies. This process often involves agencies issuing proposed rules, seeking public comments, and then finalizing regulations. However, the rulemaking process allows agencies significant discretion and can result in rules that go beyond the scope of the original legislation or lack adequate justification.

For example, the Affordable Care Act (ACA) mandated that the Department of Health and Human Services (HHS) establish guidelines for preventive health services to be covered by insurance plans. The HHS subsequently issued regulations requiring employers to provide contraception coverage, which sparked legal challenges on the grounds of religious freedom. The rulemaking process allowed the agency to extend its authority and make controversial policy decisions.

Furthermore, agencies frequently use “interpretive rules” and “guidance documents” that do not go through the formal rulemaking process but still have binding effects. This practice further expands the administrative state’s power, as agencies can effectively create new requirements without proper oversight or public input.

The growth of the administrative state is a consequence of Congress’s delegation of broad powers, the proliferation of federal agencies, and the reliance on rulemaking. Through these processes, agencies have gained significant regulatory authority, often surpassing the intended scope set by Congress. Examples like the EPA’s air quality standards, the FCC’s telecommunications regulations, and the FDA’s oversight of food and drugs highlight the far-reaching impact of the administrative state.

Poorly Written Laws and Vague Statutory Language

The issue of poorly written laws and vague statutory language is a significant factor in Congress’s ceding of authority to the Executive branch and the subsequent growth of the administrative state. When laws passed by Congress lack specificity and clarity, it grants regulatory agencies wide discretion in interpreting and implementing them.

• The Clean Air Act Amendments of 1990: The Clean Air Act Amendments of 1990 aimed to address environmental concerns by reducing air pollution. However, the law provided little clarity on key provisions, such as the definition of terms like “reasonable progress” and “best available control technology.” As a result, the Environmental Protection Agency (EPA), the agency responsible for enforcing the act, was granted substantial latitude in determining how to implement and enforce these provisions. This allowed the EPA to create complex and burdensome regulations without direct input or oversight from Congress.
• The Immigration and Nationality Act of 1965: The Immigration and Nationality Act (INA) of 1965 aimed to reform the U.S. immigration system by eliminating discriminatory quotas based on national origin. While the intentions of the law were commendable, the language used in certain provisions lacked specificity and clarity, leading to unintended consequences.

One such provision was the establishment of the family-based immigration system, which prioritized the reunification of families. However, the law did not clearly define the criteria for family sponsorship, resulting in ambiguity and allowing the administrative state to interpret and shape the regulations governing family-based immigration.

As a result, regulatory agencies, primarily the U.S. Citizenship and Immigration Services (USCIS), were given significant discretion in determining eligibility requirements, processing times, and documentation standards. This lack of legislative clarity contributed to the growth of a complex and often burdensome immigration bureaucracy that operates within the administrative state.

The vague statutory language of the INA, combined with extensive rulemaking authority granted to agencies, has resulted in an intricate web of immigration regulations that can be subject to changing interpretations and inconsistent enforcement.

• The Dodd-Frank Wall Street Reform and Consumer Protection Act: The Dodd-Frank Act, enacted in response to the financial crisis of 2008, sought to address issues in the banking and financial sector. However, the law’s extensive use of broad language and delegation of rulemaking authority to regulatory agencies like the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau (CFPB) has led to a proliferation of complex regulations. The law provided limited guidance on critical aspects, such as defining key terms like “systemically important financial institutions” or specifying the exact requirements for compliance. This has resulted in regulatory uncertainty and allowed agencies to shape financial policy without sufficient congressional oversight.
• The Clean Water Act (CWA): The CWA was enacted to protect the nation’s water resources from pollution and ensure clean water for all. However, the law’s language regarding the definition of “waters of the United States” was vague and left open to interpretation. This ambiguity empowered the EPA and the Army Corps of Engineers to expand federal jurisdiction over wetlands and other water bodies, leading to controversies and legal battles over the extent of the agencies’ regulatory authority.

These examples demonstrate how poorly written laws and vague statutory language contribute to the growth of the administrative state. By leaving critical terms undefined and granting regulatory agencies broad discretion, Congress effectively delegates lawmaking powers to unelected bureaucrats. This undermines the balance of power and weakens the ability of elected representatives to exercise their legislative authority.

Failure to Require Regulations to be Submitted for Approval

One of the key factors contributing to the expansion of the administrative state is Congress’s failure to require regulations to be submitted for approval. While Congress may delegate rulemaking authority to executive agencies, it often neglects to actively review or oversee the regulations created by these agencies. This lack of rigorous oversight allows agencies to promulgate rules without sufficient congressional scrutiny, further expanding the administrative state’s reach.

One prominent example of this failure is the Chevron deference doctrine, established by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984). Under Chevron, courts defer to an agency’s reasonable interpretation of ambiguous statutory language. This decision effectively grants agencies significant leeway in interpreting statutes, giving them substantial power to shape policy outcomes without direct congressional involvement. By deferring to agency interpretations, Congress relinquishes its duty to provide clear guidance on legislative intent, resulting in an unchecked growth of the administrative state.

Moreover, Congress has also allowed agencies to bypass the traditional rulemaking process through the use of guidance documents. Guidance documents are informal agency statements intended to clarify policy interpretations but do not undergo the same level of scrutiny as formal regulations. Agencies often issue guidance documents without soliciting public input or subjecting them to congressional review. This practice grants agencies considerable flexibility in shaping policy without the same level of accountability or transparency as formal rulemaking.

The Environmental Protection Agency (EPA) offers a notable example of this trend. In 2015, the EPA issued the Waters of the United States (WOTUS) rule, expanding its jurisdiction over bodies of water under the Clean Water Act. The rule faced significant backlash for its broad reach and potential impact on private landowners. While Congress had delegated the EPA the authority to define “waters of the United States,” the rule went beyond what many lawmakers had intended. The lack of specific congressional oversight during the rulemaking process allowed the agency to expand its regulatory authority, further exemplifying the erosion of legislative control over the administrative state.

Furthermore, Congress has often passed legislation containing broad, open-ended delegations of authority to agencies. The Affordable Care Act (ACA) is a notable example of this trend. The ACA granted the Department of Health and Human Services (HHS) extensive authority to develop rules and regulations governing various aspects of healthcare reform. This broad delegation of authority left significant policy decisions in the hands of unelected officials, granting them the power to shape critical aspects of the healthcare system without direct congressional approval.

The failure of Congress to require regulations to be submitted for approval has significant implications for the balance of power and democratic accountability. By neglecting their oversight responsibilities and allowing agencies to bypass formal rulemaking processes, Congress cedes authority to the administrative state, enabling it to expand beyond constitutional constraints.

To address this issue, Congress must enact legislation that ensures regulations undergo a rigorous approval process, with opportunities for public input and congressional review. By actively engaging in the oversight of agency rulemaking, Congress can reclaim its legislative authority and ensure that policies are crafted in line with the intent of the laws it enacts.

Congressional Neglect of Oversight Responsibilities

The oversight function is a vital responsibility entrusted to Congress to ensure accountability, prevent executive overreach, and safeguard the democratic principles upon which the United States was founded. However, in recent years, Congress’s commitment to fulfilling its oversight obligations has waned, allowing the administrative state to expand unchecked. Here are examples of congressional neglect of oversight responsibilities:

• Infrequent Oversight Hearings: Oversight hearings serve as a critical mechanism for Congress to exercise its oversight authority and hold executive agencies accountable. Unfortunately, in recent years, the frequency of such hearings has significantly declined. For instance, a study by the Brookings Institution found that the number of oversight hearings in the House of Representatives dropped by 42% between 2010 and 2016.
• Superficial Questioning and Lack of Engagement: When oversight hearings do take place, they often lack substantive engagement, with members of Congress resorting to political posturing rather than conducting thorough investigations. Lawmakers may use their limited time for grandstanding rather than pressing agency officials on important issues. This trend undermines the efficacy of oversight, as it fails to provide meaningful scrutiny and oversight of agency actions. Recently, Democratic Reps. Jim McGovern of Massachusetts and Adam Schiff of California claimed Tuesday that a special subcommittee to oversee the FBI was an attack on “law enforcement,” instead of addressing the very real concerns of that agency’s censorship of free speech during a presidential election.
• Failure to Follow Up on Agency Testimony: Testimony provided by agency officials during oversight hearings should serve as a starting point for further investigations and follow-up actions. However, Congress often neglects to follow up on the information presented or to take appropriate measures to address concerns raised during these hearings. This failure to act allows agencies to continue operating without sufficient accountability or oversight.
• Inadequate Use of Subpoena Power: Subpoenas are a powerful tool available to Congress to compel agencies to provide information and witnesses necessary for effective oversight. However, there have been instances where Congress has been reluctant to use this authority to enforce compliance. This reluctance weakens Congress’s ability to obtain critical information, hindering its capacity to conduct robust oversight. FBI director Wray refused to answer questions and walked out because he was, “Late to start his vacation.”

• Failure to Address Executive Overreach: Executive overreach occurs when the Executive branch exceeds its constitutional authority. Congress has the responsibility to act as a check on such actions. However, there have been cases where Congress has been slow or hesitant to respond to instances of executive overreach, thereby allowing the administrative state to expand beyond constitutional limits. During the Obama administration, President Barack Obama issued executive orders, such as the Deferred Action for Childhood Arrivals (DACA) program and the Deferred Action for Parents of Americans (DAPA) program, which provided temporary relief from deportation for certain undocumented immigrants. These executive actions faced criticism from those who believed that they exceeded the President’s constitutional authority and encroached upon Congress’s legislative power to establish immigration policy.

While some members of Congress, particularly Republicans, strongly opposed these executive actions and argued that they were unconstitutional, Congress as a whole was hesitant to take decisive action to address the issue. Despite the heated debates and legal challenges, Congress did not pass comprehensive immigration reform legislation to establish a clear statutory framework for addressing the status of undocumented immigrants.This failure to rein in executive power undermines the balance of powers outlined in the Constitution.

• Inadequate Funding for Oversight Activities: Effective oversight requires sufficient resources, including staff, research capabilities, and technical expertise. However, Congress has often underfunded its own oversight activities, resulting in limited capacities to conduct comprehensive investigations. Inadequate funding diminishes Congress’s ability to provide robust oversight, allowing agencies to operate with less scrutiny.
• Failure to Address Regulatory Overreach: Regulatory agencies often enact rules and regulations that have a significant impact on the economy, public health, and individual liberties. Congress has the authority to review and disapprove regulations, but it frequently refrains from exercising this power effectively. As a result, agencies can impose regulations that go beyond their delegated authority, further expanding the administrative state.

The growth of the administrative state and Congress’s neglect of its oversight responsibilities have created a concerning imbalance in the separation of powers established by the Constitution. Through poorly written laws, vague statutory language, and a lack of regulatory scrutiny, Congress has unintentionally ceded significant authority to the Executive branch. This shift of power has allowed unelected bureaucrats to make critical policy decisions that should be within the purview of elected representatives.

The decline in oversight hearings, superficial questioning, and a failure to follow up on agency testimony have further weakened Congress’s ability to hold the administrative state accountable. By failing to address executive overreach and regulatory overreach, Congress has allowed the expansion of the administrative state beyond constitutional constraints. This not only undermines the checks and balances envisioned by the Founding Fathers but also diminishes the democratic principles that underpin the American system of governance.

To restore the proper balance of power, Congress must actively reclaim its authority and fulfill its oversight responsibilities. Clear and specific legislation must be enacted, ensuring that Congress retains its legislative power and prevents the undue delegation of authority to executive agencies. Robust oversight mechanisms, including frequent and substantive hearings, active follow-up on agency testimony, and the effective use of subpoena power, are essential to hold agencies accountable and rein in any abuses of power.

Additionally, Congress must prioritize addressing instances of executive and regulatory overreach promptly. By doing so, it can assert its role as a check on the Executive branch, safeguarding the interests of the American people and upholding the principles of democratic governance.

Preserving the separation of powers and restoring effective oversight is crucial to maintaining a healthy democracy. It is incumbent upon Congress to recommit to its oversight duties, allocate adequate resources for oversight activities, and exercise its authority to ensure that the administrative state operates within the bounds of the Constitution. By doing so, Congress can reaffirm its role as the legislative branch and safeguard the democratic ideals that have guided the nation for centuries.

If you would like to explore the topic of Congress’s ceding of authority to the Executive branch and the neglect of oversight responsibilities in greater detail, the following resources can provide valuable insights:

• Book: “The Administrative Threat” by Philip Hamburger – This book delves into the expansion of the administrative state and its implications for constitutional governance, providing a historical and legal analysis of the issue.
• Article: “The Administrative State” by John Marini and Ken Masugi – Published in the Claremont Review of Books, this article offers a comprehensive examination of the growth of the administrative state, its effects on the separation of powers, and the need for congressional oversight.
• Report: “Congressional Oversight Manual” by the Congressional Research Service – This manual provides an overview of the oversight process and guidance on conducting effective oversight activities, including hearings, investigations, and document requests.
• Article: “Congressional Oversight and the Administrative State” by Jack Maskell – Published in the American University Law Review, this article explores the history, scope, and limitations of congressional oversight, discussing key challenges and potential reforms.
• Report: “The Administrative State: An Examination of Federal Rulemaking” by the U.S. Senate Committee on Homeland Security and Governmental Affairs – This report examines the rulemaking process and its impact on the growth of the administrative state, highlighting specific case studies and proposing recommendations for improving congressional oversight.
• Organization: The Article I Project (A1P) – A1P is a policy and research initiative focused on restoring Congress’s constitutional role. Their website offers a range of resources, including articles, reports, and events, exploring issues related to the separation of powers and congressional oversight.