Administrative Collusion: How Delegation Diminishes the Collective Congress

65 Pages Posted: 18 Oct 2015 Last revised: 27 Jul 2016

Neomi Rao

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 16, 2015

Abstract

This Article identifies a previously unexplored problem with the delegation of legislative power by focusing not on the discretion given to executive agencies, but instead on how delegations allow individual congressmen to control administration. Delegations create administrative discretion, discretion that members of Congress can influence through a variety of formal and informal mechanisms. Members have persistent incentives for delegation to agencies, because it is often easier to serve their interests through shaping administration than by passing legislation. To understand the particular problem of delegation, I introduce the concept of the “collective Congress.” Collective decisionmaking is a fundamental characteristic of the legislative power. The collective Congress serves an important separation of powers principle by aligning the ambitions of legislators with the power of Congress as an institution. Although members represent distinct interests, the Constitution allows members of Congress to exercise power only collectively and specifically precludes them from exercising any type of individual or executive power. Delegation, however, provides opportunities for individual legislators to influence administration and poses a serious separation of powers concern by fracturing the collective Congress. This insight undermines the conventional view that delegations will be self-correcting because Congress will jealously guard its lawmaking power from the executive. Instead, members of Congress will often prefer to collude and to share administrative power with the executive. As a result, delegation destroys the Madisonian checks and balances against excessive delegation. This structural failure suggests a need to reconsider judicial enforcement of the nondelegation doctrine and to implement political reforms to realign Congress with its collective power.

Keywords: Article I & II, unitary executive, legislative power, deference, Madison, Chevron, Mead, Arlington, party polarization, regulation, rulemaking, republican government, statutory interpretation, canons, political safeguards, public choice, non-delegation, independent agencies, judicial review, CFPB

JEL Classification: D7, D72, D73, K23

Suggested Citation

Rao, Neomi, Administrative Collusion: How Delegation Diminishes the Collective Congress (October 16, 2015). New York University Law Review, Vol. 90, No. 5, pp. 1463-1526, 2015; George Mason Legal Studies Research Paper No. LS 15-38; George Mason Law & Economics Research Paper No. 15-47. Available at SSRN: https://ssrn.com/abstract=2675260

Neomi Rao (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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