Blame-Shifting, Judicial Review, and Public Welfare
83 Pages Posted: 9 Aug 2015 Last revised: 12 Jul 2016
Date Written: December 7, 2012
Delegating authority to bureaucrats raises two principal concerns. The first is how to ensure that the bureaucrats use this authority to serve the best interests of the public. The second is how to prevent the legislature, namely Congress, from using delegation to promote its own interests to the detriment of the public’s. This latter phenomenon is referred to as blame-shifting: rather than enacting an unpopular policy itself, Congress enacts a vague or broad delegation, shifting responsibility and blame onto the agency for the policy. On the conventional account, blame-shifting is thought to enable policies that make the public worse off, allowing for more special interest legislation that benefits a select group at the public’s expense, which has led to calls for a strengthened nondelegation doctrine to bar the sorts of delegations that make blame-shifting possible. I argue that the conventional account of blame-shifting is founded on inconsistent premises. For example, it has not adequately explained how it is that voters are able to punish legislators for passing statutes they dislike while being seemingly incapable of punishing delegations about which they feel the same.
In its place, I propose a reconstructed account of delegation where such broad delegations of policymaking authority are part of a strategy that allows the public to take advantage of the agency’s expertise. While something resembling blame-shifting can occur within this reconstructed account, these broad delegations of authority overall make the public better off. Contrary to the conventional account, then, I find little reason to institute a stricter nondelegation doctrine.
With this new account of delegation in mind, I then consider the potential benefits of judicial review of agency policy. In particular, I find that hard look review, where the courts evaluate the merits of the agency’s policy, makes the public better off only under demanding conditions that are unlikely to be met. In some cases, it can make the public worse off, especially when the legislature delegates broad, relatively unconstrained authority to the agency. This conclusion is somewhat counter-intuitive, as we might expect judicial review of agency policymaking to be most important in cases of broad delegation, and a result of the limited technical information available to the court.
These observations offer a different perspective on the instruction in Chevron — that courts are to defer to agency interpretations of statutes when those statutes are ambiguous. When Congress delegates broad authority to an agency the statute is properly considered ambiguous, as the legislature did not intend for a particular policy to be implemented, instead leaving that decision to the agency. The effect of Chevron is to give the agency freedom to act without intervention by the courts. In doing so, Chevron follows the intent of Congress, influenced by the voters. The doctrine therefore makes the public better off and enjoys a rationale based on democratic accountability, though one distinct from the rationale cited by the Court.
The courts do play an essential role when there is delegation, though. It is their task to determine the scope of the delegated authority and to enforce constraints on that authority when they are present. In this manner, judicial review is an important mechanism for resolving the first principal concern raised by delegation.
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