RESTORING CONGRESS'S ROLE IN THE MODERN ADMINISTRATIVE STATE.

• Author: Walker, Christopher J.
• Position: Book review

CONGRESS'S CONSTITUTION: LEGISLATIVE AUTHORITY AND SEPARATION OF POWERS. By Josh Chafetz. New Haven and London: Yale University Press. 2017. Pp. x, 315. $45.

INTRODUCTION

We live in a modern regulatory world, vastly different from what the framers could have imagined. As I have noted, "the focus and function of lawmaking have shifted from judge-made common law, to congressionally enacted statutes, and now to agency-promulgated regulations." (1) For instance, by the end of 2016, the Code of Federal Regulations exceeded 175,000 pages and included tens of thousands of rules. (2) That's more than one hundred million words and one million regulatory restrictions; it would take over three years for one employed full time to read the entire Code. (3) In 2016, federal agencies reached a new regulatory record by filling over 95,000 pages of the Federal Register with adopted rules, proposed rules, and notices--nearly 20% more than the 80,000 or so pages published in 2015. (4) Roughly two-fifths of those pages in 2016 were devoted to 3,853 final rules, an increase from the 3,410 final rules federal agencies promulgated in 2015. (5)

By contrast, the 114th Congress, over that same two-year period, enacted just 329 public laws for a total of 3,036 pages in the Statutes at Large. (6) In January 2014, Senator Mike Lee took to Facebook to visually depict the shift in lawmaking from legislation to regulation:

Counting words, pages, and laws is by no means a flawless method for capturing the extent of this trend in federal lawmaking. But there is no serious debate that Congress's legislative role has diminished as the bureaucracy has sprawled. Indeed, outside of the tax reform legislation enacted at the close of the year, Congress's most significant legislative achievement in 2017 may well not be a new law at all. Instead, it is arguably Congress's invocation of the Congressional Review Act to invalidate a dozen or so major federal agency rules promulgated at the end of the Obama Administration. (8)

In light of the modern realities of federal lawmaking, it is no surprise that calls for reform of Congress's role in the administrative state amplified during the latter years of the Obama Administration. For instance, some Republicans in Congress established the Article I Project: a "conservative reform agenda" to "[r]eclaim[] Congress's power of the purse," "[r]eform[] legislative 'cliffs,' " "[r]eassert[] congressional authority over regulations and regulators," and "curb[] executive discretion." (9) In November 2015, the Federalist Society started a similar Article I Initiative, with the mission "to restore Congress to its rightful place in the Constitutional order." (10)

One might expect that the 2016 election, with Republicans gaining control of the presidency and Congress, would cause an undoing of a fair amount of the Obama Administration's regulatory actions as well as muted calls by congressional Republicans and conservatives for Article I reform. Deregulation is happening, but the Article I Project and Article I Initiative have continued. And calls for restoring Congress's place in the modern administrative state may now find more allies from the other side of the aisle.

Against this political backdrop, the Yale University Press could not have chosen a better time to publish Cornell law professor Josh Chafetz's (11) important new book, Congress's Constitution: Legislative Authority and the Separation of Powers. In Congress's Constitution, Chafetz provides a roadmap for Congress to (re)assert its powers in federal policymaking and governance. Chafetz explains that "Congress is certainly not at a necessary disadvantage across the board as against the other branches" (p. 42). Instead, Congress possesses many powerful tools to compete with the other branches of government. These tools have deep historical roots. Chafetz exhaustively chronicles their evolution from seventeenth-century English parliamentary practices, to the codification of Article I of the U.S. Constitution, to the development of congressional practice in American governance over the centuries to the present day. To the extent Congress has lost its ability to utilize the tools effectively, Chafetz argues that such loss of power "is a contingent fact, and one that can be reversed" (p. 42).

Congress's Constitution is a commanding exposition of Congress's powers vis-a-vis the other branches of the federal government. It is an important read for scholars of administrative law, legislation, and the separation of powers, and it should be required reading for new congressional staffers and federal agency legislative affairs personnel. As Philip Wallach observes, "Chafetz's presentation of this material is masterful, pitched so as to be accessible to the novice and yet genuinely informative even to the expert." (12) Congress's Constitution fulfills Chafetz's "hope that the reader will be surprised, both by the efficacy with which some of these tools have been (and are being) used, and also by their potential for use in future inter-branch conflicts" (p. 42).

In this Review, I focus on two observations. In Part I, I summarize and analyze the "potent toolbox" of "hard powers" and "soft powers" that Congress can wield to play its proper role in our separation-of-powers framework (pp. 3, 6). Whereas Chafetz primarily frames these powers in relation to the second and third branches of government--the president and the courts, respectively--this Review explores how the toolbox is and can be used to constrain what some call the "fourth branch": the modern administrative state. (13) To be sure, Chafetz does not ignore federal agencies; they are, after all, creatures of statute and subject to varying degrees of presidential control. But Congress's Constitution is less focused on addressing Congress's role in response to "the rise and rise of the administrative state." (14) The tools Chafetz has identified are quite powerful in shaping the principal-agent relationship between Congress and federal agencies and thereby influencing the vast regulatory activity discussed at the outset.

In Part II, I turn to what Congress's Constitution expressly does not address: Congress's core function of passing laws. (15) Chafetz limits his book to Congress's other tools. This limitation is no doubt a reasonable decision, as the book is already quite ambitious. And, as Chafetz acknowledges, "[b]roadening the scope beyond legislation is essential if one truly hopes to understand Congress's ability to have an impact on our national political life" (p. 2). But for someone like me who studies congressional control of federal agencies, it is hard not to fixate on the point that all of these tools exist principally to help facilitate Congress's core legislative activity. If Congress is not regularly engaged in passing laws, it seems that the wisdom--and perhaps even legitimacy--of these tools are called into question.

In raising this concern, I'm not writing on a blank slate. Political scientists have spent decades examining the costs of legislating clearly and how members of Congress and congressional committees have incentives to encourage (or at least not discourage) statutory ambiguity and then influence agency implementation of that ambiguity through oversight tools and other pressures (16)--many of which Chafetz documents in Congress's Constitution. As Neomi Rao and I have explored in the contexts of the nondelegation doctrine and Chevron deference, respectively, these incentives could lead to "administrative collusion" between members of Congress and the federal agencies they oversee. (17)

This observation is not a criticism of Congress's Constitution. Instead, it serves as a word of caution about Congress's use of this potent toolbox without also engaging in a regular and sustained agenda of passing laws. To restore Congress's place in the modern administrative state, it is not enough for members of Congress and congressional committees to more effectively oversee and influence regulatory lawmaking. The collective Congress must also regularly legislate. Congress must reauthorize and modernize the organic statutes that govern federal agencies, respond to regulatory activity with which the current Congress may disagree, and preserve the proper separation of powers between the legislative and executive (or, better said, regulatory) branches of government.

1. CONGRESS'S TOOLBOX FOR CONSTRAINING THE REGULATORY STATE

   In 2015, the Administrative Conference of the United States engaged me as an academic consultant to examine the role of federal agencies in the legislative process, with a particular emphasis on "technical drafting assistance." (18) It turns out that federal agencies play a substantial role in the legislative process. Agencies both propose legislation that advances agency or presidential objectives and provide technical assistance on legislation drafted by Congress. In fact, interviews at some twenty federal agencies revealed that agencies provide technical drafting assistance on the vast majority of the proposed legislation that directly affects them and on most such legislation that gets enacted. (19)

   The agency officials interviewed also noted that few congressional requests for technical drafting assistance go unanswered by their agency--regardless of any factor including the party affiliation of the request or the likelihood of the legislation becoming law. (20) A predominant reason for such responsiveness concerns the tools Congress has to affect agency behavior. Congress's legislative power to change the agency's statutory mandate, or at least the threat of such legislative action, is obviously one factor. But Congress's oversight powers also matter. As one agency official noted, when providing technical drafting assistance "oversight is always in the back of our minds." (21) As another put it, when a senior agency official is scheduled to appear at a...