Skip to content
Search

Latest Stories

Follow Us:
Top Stories

Putting the Guardrails Back on Delegations of Power

Opinion

Federal Register Reports being printed out of a large machine.

Congress should strengthen the administrative state by writing clearer laws, limiting delegated authority, and requiring periodic reauthorization of agency powers.

Photo courtesy of Luka Jacobi-Krohn

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.


Read More

Veterans Don’t Stop Being Veterans at the Prison Gate

Veterans often lose VA healthcare, disability benefits, and education access during incarceration, disrupting PTSD and addiction treatment when continuity matters most.

Getty Images

Veterans Don’t Stop Being Veterans at the Prison Gate

A veteran’s PTSD doesn’t disappear when they enter prison. Traumatic brain injuries don’t cure themselves. Addiction doesn't vanish behind bars. Yet many of the systems designed to help veterans manage those conditions stop at the prison gate.

When veterans are incarcerated, they often lose access to VA healthcare, struggle to use education benefits, and face major cuts to disability compensation. The problem is not eligibility. The problem is continuity.

Keep ReadingShow less
Protestors holding signs outside of the Idaho statehouse.

Protesters rally for abortion rights outside of the Idaho Statehouse in downtown Boise, Idaho, on May 14, 2022.

Sarah A. Miller/Idaho Statesman/AP

Idaho Voters Will Weigh In on One of the Strictest Abortion Bans in the Country

Idaho voters will weigh in on their state’s abortion laws this November. The secretary of state’s office certified a ballot measure that could, if passed, overturn one of the strictest bans in the country, the campaign to restore abortion rights in Idaho confirmed on Monday.

The measure would enact a new law establishing a state right to “reproductive freedom,” which it defines as allowing residents to make their own decisions in areas including fertility treatment, contraception and abortion. But it would not amend the state’s constitution, meaning it could still be overturned by the state’s Republican legislature. Currently, Idaho bans abortion in nearly all circumstances, with a narrow exception if staying pregnant threatens someone’s life.

Keep ReadingShow less
People wearing vests with "ICE" and "Police" on the back.
The latest shutdown deal kept government open while exposing Congress’s reliance on procedural oversight rather than structural limits on ICE.
Getty Images, Douglas Rissing

Where Can Immigration Enforcement Take Place?

This nonpartisan policy brief, written by an ACE fellow, is republished by The Fulcrum as part of our partnership with the Alliance for Civic Engagement and our NextGen initiative — elevating student voices, strengthening civic education, and helping readers better understand democracy and public policy.

The Origins: The Clinton Administration

Keep ReadingShow less
The Iran war could shape American policy for decades

U.S. forces patrol the Arabian Sea near M/V Touska on April 20, 2026, after firing upon the Iranian-flagged vessel that the U.S. accused of attempting to violate the U.S. naval blockade of Iranian ports near the Strait of Hormuz.

(U.S. Navy/Getty Images/TNS)

The Iran war could shape American policy for decades

The war with Iran that never really ended is back on. Like everybody else, including the Trump administration and the Iranian regime, I have no idea how it will end. But it eventually will, and how it will be remembered will matter enormously.

Politics is about many things, but whether you call it “spin,” “framing” or “narrative competition,” storytelling is never far from the heart of it. As the philosopher Richard Rorty observed, “Competition for political leadership is in part a competition between differing stories about a nation’s self-identity, and between differing symbols of its greatness.”

Keep ReadingShow less