Congress needs to write better laws instead of dismantling the administrative state.
Debates over the administrative state focus on whether these agencies have accrued too much power. Some argue that the solution is to severely weaken or, in extreme scenarios, dismantle these federal agencies. However, the issue is not the existence of these agencies but actually how Congress writes its laws. When statutes are drafted with vague language, agencies are left to interpret the scope, and courts are forced to set the boundaries. This results in constant litigation and generally regulatory instability. If Congress actually wants a more durable and accountable regulatory system, they need to start with themselves by writing clearer laws.
Over the past century, Congress has tasked federal agencies with implementing often broad legislation to create federal rules allowing them to fill in the details. This resulted from a practical need; elected officials cannot realistically draft every single law, for instance environmental protection laws, or laws safekeeping public health.
However, in recent years, this line has become increasingly blurred, and the process has turned into more of an abdication of power instead of the proper delegation that it started with. Too often, Congress passes laws that are upheld by courts under the “intelligible principle” established in J.W. Hampton, Jr. & Co. v. United States (1928), which allows Congress to provide guiding principles for agencies to implement statutory mandates, but Congress has been using extremely broad language such as “in the public interest” or “as necessary and appropriate.” These do not clearly define the outer limits of the authority Congress is delegating. This has led to several issues, the first of which is that agencies have faced increasing litigation as courts scrutinize their actions under doctrines like the major questions doctrine, leaving agencies exposed to political blame for choices they made from unclear statutory drafting.
The solution is that Congress must put guardrails on its delegations of power. Congress should adopt a rule/law that includes two elements: a plain language statement that defines the boundaries and outer limits of the power being granted to an agency, and an automatic ten-year expiration unless Congress reauthorizes the delegation of power.
The plain language requirement would still allow for the expertise of agencies to fill in the details regarding regulations/rules, but Congress would be required to specify the scope and limit of the discretion it is transferring to the agencies. The plain language added to a bill should include essential pieces such as constraints, boundaries, or decisions the agency may make. Congress has already signaled its support for more clear government communications by passing the Plain Writing Act of 2010, which requires federal agencies use more ordinary everyday language to help everyday Americans understand the agency's public communications. Congress should hold itself to the same standard when they transfer policymaking authority.
The ten-year sunset provision forces Congress to reauthorize its delegations of power. One issue today is that authority delegated by Congress, whether to the executive or federal agencies, can be indefinite. This means that some agencies are still using authority from laws that were passed decades ago. The Food, Drug, and Cosmetic Act of 1938 for instance, is the main source of authority for the FDA. This law was written a long time before many of the changes that have defined the 21st century like AI-powered medical devices yet the FDA is forced to interpret and apply that nearly century-old language to regulate them. A sunset provision would fix this by requiring Congress to periodically assess whether the delegation of power to an agency remains appropriate or needs to be modified. It doesn't mean agencies would cease all operations if it isn't passed or renewed, just that a certain authority delegated by Congress for a specific function may cease.
These reforms would make it more difficult for courts to strike down regulations/rules made by agencies such as environmental protection or health rules because Congress wasn't clear where its delegation of authority ends or starts. When Congress defines the boundaries of its delegation in clear, simple, plain language, agencies will be less at risk of facing litigation regarding their rules.
Congress can strengthen, not dismantle the administrative state by reclaiming its constitutionally given authority to write the laws and define the scope of the authority it delegates. By putting guardrails back on its delegations of power, Congress will make the federal government more accountable, more transparent, and most importantly, more durable.
Luka Jacobi-Krohn is a political science student at the University of Pennsylvania. He spent the last semester as a domestic intern at Penn Washington, where he studied and wrote about federal agencies, Congress, policymaking, and their intersections.
