Power Without Responsibility: How Congress Abuses the People through Delegation

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Victories have parents; the president has sole custody of defeats. A theme is obvious: Congress must act, rather than delegating difficult choices to bureaucrats. This is in keeping with an earlier volume by Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation , a learned treatment of congressional delegation to agencies.

LegBranch Conversations: An interview with David Schoenbrod

One thread linking both these books is that when Congress delegates significant power, it shirks its duties and evades blame for the inevitable tradeoffs. Still there are differences across these solutions. It merely requires disclosure of facts. The thought must be that if the people are made aware of the money trick, they will no longer permit Congress to borrow from their children and grandchildren.

Yet we live in an age of disclosure and are drowning in boilerplate. Anyone applying for a credit card, purchasing software, or visiting the office kitchen is bombarded with info about fees, terms, and labor rights. Will a form letter with some fiscal figures cause voters to question fiscal policy?

Count me a skeptic. This might especially be true for debt.

How Congress Abuses the People through Delegation

For the latter tricks, Schoenbrod harnesses expertise to propose solutions. Experts outside Congress may recommend disestablishing debt guarantees, raising insurance premiums, and enacting regulations, with Congress making the ultimate decisions. Why not similarly establish a commission for the deficit? It could cull the budget for wasteful spending and ask Congress to eliminate those items. Admittedly, Congress does not want to take these votes.

As terrific as DC Confidential is, there will be some who question its focus. For instance, the unfunded mandate trick seems the least objectionable of the five tricks. Indeed, one might say that the real trick of fiscal federalism involves the states keeping their taxes low.

States impose relatively small tax burdens, but because the federal government funnels billions to the states, the states actually spend quite a bit more money than their tax revenues suggest. Moreover, if Congress is to share revenue, why not have an honest redistribution? Stop funding the rich states. To be clear, federalism is a bedrock constitutional principle, and the states play a vital checking function.

Yet federalism is enervated when states become fat at the federal trough for the states become akin to federal dependencies.


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In any event, the general point is that there are more significant instances of federal overreach than unfunded mandates. There are notable omissions as well. Those on the right may wonder about another unfunded mandate: the concentrated burdens of regulations. Essentially, the government imposes regulations, some of which are justified on a cost-benefit basis.

David Schoenbrod - Google Scholar Citations

But the winners the general public do not compensate the losers the regulated parties. In the case of private real property, we require compensation when that property is taken. Of course, no book can be eminently readable and propose solutions to all that afflicts our federal government. Our elected "lawmakers" then take credit for proclaiming popular but inconsistent statutory goals and later blame the inevitable burdens and disappointments on the unelected bureaucrats.


  • Show Me a Lawyer.
  • Life in Flux;
  • Mathematics and the Imagination (Dover Books on Mathematics).
  • David Schoenbrod | HuffPost.
  • The Social Psychology of English as a Global Language: Attitudes, Awareness and Identity in the Japanese Context: 10 (Educational Linguistics)?

The Clean Air Act, for example, gave the Environmental Protection Agency the impossible task of making law that would satisfy both industry and environmentalists. Delegation allows Congress and the president to wield power by pressuring agency lawmakers in private, but shed responsibility by avoiding the need to personally support or oppose the laws, as they must in enacting laws themselves.

Schoenbrod draws on his experience as an attorney with the Natural Resources Defense Council and on studies of how delegation actually works to show that this practice produces a regulatory system so cumbersome that it cannot provide the protection that people need, so large that it needlessly stifles the economy, and so complex that it keeps the voters from knowing whom to hold accountable for the consequences. Contending that delegation is unnecessary and unconstitutional, Schoenbrod has written the first book that shows how, as a practical matter, delegation can be stopped.

Sunstein, University of Chicago Law School. Also of Interest More from this Author.

An Interpretation of Beyond Good and Evil. Laurence Lampert.


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