Legislating for Good Times and Bad

56 Pages Posted: 25 Jun 2016

See all articles by David Kamin

David Kamin

New York University School of Law

Date Written: June 24, 2016

Abstract

Congress tends to move in fits and starts. Major policy changes are often followed by periods of legislative stasis. This means that, even as circumstances change and policies may no longer be appropriate in the new conditions, Congress may not respond. This is the problem of “policy drift.”

The academic literature has recognized this challenge and largely focused on one particular type of solution employed by Congress: empowerment of other institutions that can move more quickly, in particular administrative agencies or the courts. However, this view is far too limited. Congress can keep such authority in its hands and still address policy drift, sometimes even more effectively.

This article is the first to comprehensively consider the tools available to Congress to address such drift. It particularly focuses on “automatic-adjustment mechanisms” — mechanisms that are pre-set by Congress and automatically adapt policy to new circumstances. Such mechanisms are among the most promising ways for reducing policy drift — since they respond quickly and predictably. For instance, such mechanisms could automatically diversify risk across generations in Social Security; cut unemployment in a recession; and reduce the danger that a carbon tax or cap-and-trade system would result in carbon prices that are either too high or too low.

Still, automatic-adjustment mechanisms have their limits, since they come with little room for discretion, and so there are roles for other tools as well — such as alarm-bells for Congress, fast-track rules for congressional consideration, and the traditional tools of empowering agencies or courts. In combination, these tools — and especially automatic-adjustment mechanisms — can help Congress legislate for good times and bad.

Keywords: legislation, uncertainty, automatic adjustments, delegation, Social Security, countercyclical policy, carbon price

JEL Classification: E62, D73

Suggested Citation

Kamin, David, Legislating for Good Times and Bad (June 24, 2016). Harvard Journal on Legislation, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2800176

David Kamin (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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