Restoring Congress's Role in the Modern Administrative State

By Walker, Christopher J. | Michigan Law Review, April 2018 | Go to article overview

Restoring Congress's Role in the Modern Administrative State


Walker, Christopher J., Michigan Law Review


RESTORING CONGRESS'S ROLE IN THE MODERN ADMINISTRATIVE STATE

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:

Behold my display of the 2013 Federal Register. It contains over 80,000 pages of new rules, regulations, and notices all written and passed by unelected bureaucrats. The small stack of papers on top of the display are the laws passed by elected members of Congress and signed into law by the president.7

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's11 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. …

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