BEYOND DELEGATION DOCTRINE
RICHARD B. STEWART*
I.
A RETURN TO CONSTITUTIONAL FUNDAMENTALISM?
Recent Supreme Court decisions suggest a return to constitutional fundamentalism in administrative law. INS v. Chadha,' which
invalidated the legislative veto, 2 and Bowsher v. Synar,3 which invalidated the Gramm-Rudman Act,4 struck down congressional assumption or limitation of "executive" powers. Northern Pipeline Construction Co. v. MarathonPipe Line Co.5 gave fresh life to the Crowell v. Benson 6 principle that the "judicial" power may not be vested in federal
7
officials other than article III judges.
* Byrne Professor of Administrative Law, Harvard University; Visiting Professor of
Law, University of Chicago.
1. 462 U.S. 919 (1983).
2. See id. at 944-59. In Chadha, the Court examined a provision of the Immigration and
Nationality Act, 8 U.S.C. § 1254(c)(a) (1982), that authorized one house of Congress to invalidate deportation decisions made by the Attorney General. Chadha, 462 U.S. at 923. After
determining that the one-house veto constituted a legislative act, the Court concluded that
the provision was an unconstitutional abridgement of the separation of powers because the
provision abrogated the need for bicameral action and did not provide for presentment to the
President. Id. at 947-51. For critical analyses of Chadha, see Breyer, The Legislative Veto After
Chadha, 72 GEO. LJ. 785, 790-99 (1984); Tribe, The Legislative Veto Decision:A Law By Any Other
Name?, 21 HARV.J. ON LEGis. 1, 18-27 (1984).
3. 106 S. Ct. 3181 (1986).
4. See Balanced Budget and Emergency Deficit Control (Gramm-Rudman) Act, 2
U.S.C.A. § 901 (West Supp. 1986). The Gramm-Rudman Act detailed a complicated procedure by which reductions in the federal deficit were effected by automatic spending reductions
ordered by the Comptroller General. Bowsher v. Synar, 106 S. Ct. 3181, 3184 (1986). In
Synar, the Court ruled that the Act violated the separation of powers because the Comptroller
General is an official of the legislative branch not subject to removal by the President alone.
Id. at 3191. Accordingly, the Comptroller General's authority to effect automatic reductions
in spending encroached unconstitutionally on the power of the executive branch. Id. at 3192;
see also Buckley v. Valeo, 424 U.S. 1, 118-43 (1976) (per curiam) (holding that legislative assumption of presidential appointment powers violates separation of powers).
5. 458 U.S. 50 (1982) (plurality opinion).
6. 285 U.S. 22 (1932).
7. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 84-88
(1982) (plurality opinion) (ruling that congressionally created bankruptcy courts are unconstitutional adjuncts to article III courts); Crowell v. Benson, 285 U.S. 22, 53-60 (1932) (enunciating principle that Congress is not constitutionally empowered to create non-article III
tribunals that finally adjudicate private rights). But see Thomas v. Union Carbide Agric. Prods.
Co., 105 S. Ct. 3325, 3334-39 (1985) (concluding that article III does not prohibit Congress
from creating arbitration bodies with limited judicial review). For a critical analysis of Northern
323
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Will the Court now begin to strike down congressional statutes
because they delegate "legislative" powers to executive officials?
Evidence of renewed faith in the delegation doctrine may be found
in Justice Rehnquist's Benzene 8 concurrence and the plurality opinion in that case. 9 The temper of the times also seems favorable.
Public antipathy to overregulation by Washington bureaucracies
could provide popular support for judicial requirements that Congress legislate more specifically in order to limit agency discretion. 10
Moreover, there are growing doubts about prevailing administrative
law efforts to control agency discretion through elaborate, costly,
and time-consuming case-by-case hearings and judicial review."i
I do not believe, however, that the federal courts will invoke the
delegation doctrine to invalidate congressional statutes. Nor should
they. There are two principal reasons why the courts are justified in
refusing to enforce this long somnolent doctrine in any but the most
unusual and infrequent circumstances. The first is the absence of
judicially manageable and defensible criteria to distinguish permissible from impermissible delegations. The second is that requiring
Congress to write detailed commands in statutes could well produce
unsound and less responsible government.
In Chadha and Synar, the Court developed workable and defensible tests for identifying constitutionally impermissible congressional
encroachments on executive powers. 12 In the delegation context,
by contrast, constitutional fundamentalism is fatally compromised
by the unchallenged admission that Congress may delegate some lawPipeline and Union Carbide, see Bator, The Constitution as Architecture: Legislative and Administrative
Courts Under Article III, 62 IND. LJ. - (1987) (forthcoming).
8. Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 682-88
(1980) (Rehnquist,J., concurring) (concluding that provisions in the Occupational Safety and
Health Act (OSHA) providing for administrative regulation of toxic hazards unconstitutionally delegate legislative powers to executive officials).
9. Id. at 607 (plurality opinion) (construing delegated authority restrictively in order to
avoid potential constitutional issue of invalid delegation of legislative power). For an original
and impressive affirmation of academic faith in the delegation doctrine, see Schoenbrod, The
DelegationDoctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985).
10. Anderson, Economic Regulation and Consumer ProtectionPolicies, in NATIONALIZING GovERNMENT PUBLIC POLICIES IN AMERICA 76-78 (1978).
11. The sources of these doubts are examined in Stewart, The Discontents of Legalism: Interest Group Relations in Administrative Regulation, 1985 WIs. L. REV. 655.
12. The Court relied upon the constitutional provisions for enactment of legislation, INS
v. Chadha, 462 U.S. 919, 947-51 (1983), and the implication of the appointment power, Bowsher v. Synar, 106 S. Ct. 3181, 3196-99 (1986). It has been much more difficult, however, to
devise tests to isolate the judicial power that must be exercised by article III courts and determine whether a constitutionally impermissible delegation of the judicial power to other officials has occurred. Compare Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 84-88 (1982) (plurality opinion) (construing congressional authority to create adjuncts to article III courts) with Thomas v. Union Carbide Agric. Prods. Co., 105 S. Ct. 3325,
3334-39 (1985) (analyzing extent of adjudicatory power vested in congressionally created arbitration bodies). A bold solution to this Gordian knot is presented in Bator, supra note 7.
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BEYOND DELEGATION DOCTRINE
325
making powers to executive officials. Given this concession, the
challenge is to develop sound criteria to distinguish permissible
from impermissible delegations. How much delegation is too
much? A number of years ago, I identified reasons why I believed
that the difficulties in devising a satisfactory juridical answer to this
question are virtually insurmountable.13 These reasons seem to me
as strong or even stronger today. With all respect, I think it fair to
say that no academic or judicial writer has been able to develop
workable criteria that come close to meeting this challenge. 14 In his
contribution to this symposium, 15 Richard Pierce reviews and critiques the proposals of scholars including Ernest Gellhorn and David
Schoenbrod who would have the courts enforce a far more demanding version of the delegation doctrine than has prevailed for nearly
two centuries. 16 I can only endorse in full Professor Pierce's critique and add a few further remarks of my own.
In order for a doctrine to be juridically enforceable, judges must
be institutionally competent to apprehend and enforce the principles upon which the doctrine rests. Professor Pierce surveys the
principles or norms that have been traditionally offered as the underpinnings of the delegation doctrine: that Congress cannot delegate "important" decisions or that it can delegate only if compelled
to do so by "inherent necessity" rather than a mere "lack of political
will" on the part of legislators to make the hard choices.1 7 As his
analysis suggests, the root difficulty with these principles is not epistemological: judges could make their own judgments about importance, necessity, or legislative responsibility.' 8 Those judgments
would not necessarily be any more subjective than the comparable
13. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 169397 (1975).
14. The difficulties in developing workable and defensible judicial criteria for enforcing
the principle that legislative powers should not be delegated are reflected in Justice Rehnquist's actions. In the Benzene case, where expensive and burdensome OSHA regulation of
industry was challenged, he voted to invalidate a provision of the OSHA statute providing for
standards to eliminate toxic occupational health risks "to the extent feasible." Industrial
Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 671 (1980) (Rehnquist, J.,
concurring). A year later in FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981), he acquiesced, without comment, in a decision upholding deregulatory steps by the FCC under a
.public interest, convenience, and necessity" standard. Id at 593-604. Such disparities,
which invite the inference of result-oriented application of nondelegation principles, seem
inevitable.
15. Pierce, PoliticalAccountability and Delegated Power: A Response to Professor Lowi, 36 AM.
U.L. REV. 391, 395-403 (1987).
16. Gellhorn, Returning to First Principles, 36 AM. U.L. REV. 345, 351-53 (1987); Schoenbrod, Separation of Powers and the Powers That Be: The ConstitutionalPurposes of the Delegation Doctrine, 36 AM. U.L. REV. 355, 365-66 (1987).
17. Pierce, supra note 15, at 393-95.
18. Id.
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judgments of legislators or executive officials. The difficulty is an
institutional one.
For the courts to invalidate wholesale 19 congressional statutes on
the basis ofjudicial conclusions that the issues of policy left statutorily unresolved are too important to be delegated to administrators,
or that such delegations are not "necessary and proper" and are
therefore politically irresponsible, is to usurp judgments that we as a
nation have concluded ever since 1937 ought to be resolved
through political mechanisms of representative government. 20 The
courts have refused to second guess legislative decisions on the appropriate extent of delegation for the same reasons that they properly have refused to second guess political decisions on the scope of
the commerce power or the content of the general welfare on which
the federal government's taxing and spending powers rest. Contrary to Dean Ely, the moribund state of the delegation doctrine
since 1937 is not a case of "death by association." 2 1 It reflects the
same basic institutional conclusions that have led the courts to renounce other forms of general superintendency over social and economic legislation.
As Professor Pierce shows, Ernest Gellhorn's attempt to reformulate the delegation doctrine in terms of a public/private goods distinction 2 2 is subject to the same basic objection as traditional
versions of the doctrine. 28 Because the nature and extent of externalities ultimately must be resolved politically, Gellhorn's proposal
also would force judges to make choices that we have appropriately
reserved to representative government.
David Schoenbrod's reformulation of the delegation doctrine
raises different issues. 24 He attempts to escape from the institu19. Most judicial review of the constitutional validity of statutes involves the enforcement of procedural requirements or of individual rights to be free of certain government
controls. Enforcement of such rights typically results in only selective invalidation of particular statutory provisions rather than total judicial condemnation of entire statutes. The latter is
the typical result of a finding of excessive delegation. E.g., A.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935).
20. The year 1937 signalled the end of the brief Schechter era during which the Court
invoked the delegation doctrine to invalidate broad delegations of power. See Carter v. Carter
Coal Co., 298 U.S. 238, 311 (1935) (striking down congressional delegation of authority to
private employers and workers to establish industrywide wage rates and maximum hours of
work); A.L.A. Schechter Poultry Co. v. United States, 295 U.S. 495, 540 (1935) (rejecting
congressional attempt to delegate vast economic regulatory powers to President or industry
groups); Panama Ref. Co. v. Ryan, 293 U.S. 388, 440-44 (1935) (ruling statute unconstitutional because it empowered President to prohibit interstate transportation of petroleum
products without adequate standards to limit executive discretion).
21.
22.
J.
23.
24.
Pierce, supra note 15, at 395-98.
Schoenbrod, supra note 16, at 365-66.
ELY, DEMOCRACY AND DISTRUST 133 (1980).
Gellhorn, supra note 16, at 351-53.
1987]
BEYOND DELEGATION DOCTRINE
327
tional objections just noted by wholeheartedly embracing formalism
and restating the delegation doctrine in conceptual rather than
functional terms. In drawing fresh attention to the potential relevance of the traditional distinction among legislative, executive, and
judicial functions to delegation issues, his analysis is useful and enlightening. But what does he propose that the courts should do? As
I understand it, Professor Schoenbrod would have the courts invalidate any federal statute that authorizes administrative officials to
regulate domestic private conduct through coercively enforced rules
or orders, unless (a) the statute itself contains a rule specifying the
conduct prohibited or required and (b) the statutory rule is sufficiently precise that administrators do no more than interpret and
enforce it.25
What would happen if the courts adopted such a test? Professor
Schoenbrod declines to estimate what percentage of the United
States Code his test would invalidate. 26 Those of us seeking to evaluate his proposal must therefore make our best estimates. Again, I
find Professor Pierce's analysis entirely persuasive. As he shows, the
Schoenbrod test would invalidate most of the federal regulatory
statutes now on the books. 27 The result would be that Congress
would have to legislate precise rules of conduct in every statute, or
not legislate at all.
For reasons developed in the next section, each of these alterna-
tives is undesirable and unpalatable. Even if one accepts the formal25. See Schoenbrod, supra note 9, at 1249-60 (developing test for judidal review of delegated authority).
26. It does not seem unreasonable to ask that proponents of new doctrines designed to
increase substantially the number of congressional statutes unconstitutionally invalidated by
the courts provide a rough "hit list" of the amount of damage they aim to inflict. Professor
Schoenbrod disagrees. See Schoenbrod, supra note 16, at 368 & n.88 (arguing that "hit list"
issue is irrelevant to issue ofjudicial manageability).
27. Professor Schoenbrod introduces two qualifications that might limit the destructive
sweep of his proposal. Neither, however, provides much mitigation. First, he states that a
rule satisfying his test may be constructed from value judgments "implicit" in a statute as well
as "explicit." Schoenbrod, supra note 9, at 1256. Unless we are given a fuller account of the
interpretive process than Schoenbrod provides, not much reliance can be placed on this approach without endorsing an effective delegation of legislative power to the courts, a result
Schoenbrod is (understandably) as concerned to avoid as delegation to administrators. Second, Professor Schoenbrod states that even if a statute as originally enacted did not contain
conduct rules satisfying his test, such rules may have been generated by subsequent judicial or
administrative lawmaking. If so they will suffice to sustain the statute's constitutional validity.
Id at 1257-58. There are at least three difficulties with this suggestion. One, it seems to
validate (contrary to Schoenbrod's entire program) delegation of legislative power to judges
and administrators so long as they succeed in exercising that power before the delegation is
challenged. Two, once such a test is adopted future delegations will be challenged promptly
and the statute invalidated before administrators and judges have the opportunity to make law
to narrow the statute. Three, as Professor Pierce shows, it is quite doubtful that many existing
statutes have, through judicial or administrative lawmaking, evolved conduct rules of sufficient precision to pass the Schoenbrod test. Pierce, supra note 15, at 401-02.
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ist premises of Professor Schoenbrod's test and concedes that it
represents workable judicial doctrine, it will not and should not be
adopted. There are no signs that the courts are willing to run the
political and institutional hazards involved in invalidating a large
percentage of the United States Code, particularly given the speculative and doubtful character of the gains to be achieved. 28 It is significant that the Court carefully eschewed any reliance on the
delegation doctrine in invalidating the Gramm-Rudman Act in
29
Synar.
Even if workable judicial doctrine could be formulated, vigorous
enforcement of the delegation doctrine would be undesirable for a
variety of reasons, including the fact that detailed decisionmaking
often is done more responsibly by executive officials (subject to
hearing requirements and judicial review) than by legislators.
Rather than repeating the reasons why I continue to adhere to these
conclusions,3 0 I will use them as the starting point for a new thesis:
the delegation problem is created, in large part, by the federal government's reliance on prescriptive strategies of centralized regulation. The "command and control" approach to regulation exerts
enormous strain on decisional and political capacities at the center.
Vigorous application of the delegation doctrine, particularly in the
form advocated by Professors Lowi and Schoenbrod, is likely to increase rather than relieve this strain. Delegation doctrine merely
focuses on a symptom: congressional delegation to administrators
of the power to formulate central directives. Instead, we should focus on the underlying problem of excessive reliance on centralized
directives to legislate conduct throughout a vast and varied nation.
This reliance on centralized directives inevitably produces policy
dysfunctions and political irresponsibility regardless of whether the
directives are formulated by federal administrators, federal legislators or, indeed, federal judges.
In some areas, the cure for the present excess of central prescription is outright deregulation. In many other areas, however, we cannot rely on the market or on state and local government to meet
28. The doubtful gains from strict enforcement of the delegation doctrine are examined
in Mashaw, Pro-Delegation:Why Administrators Should Make PoliticalDecisions, I J.L. ECON. & ORG.
81, 91-93 (1985) (challenging claims that use of delegation doctrine to require more specific
legislation would increase legitimacy and accountability of government decisionmaking).
29. Bowsher v. Synar, 106 S. Ct. 3181, 3193 n.10 (1986). The Court was careful to
proclaim the narrow and "technical" basis of its separation of powers ruling. Id. Such disclaimers would be totally implausible in judicial decisions relying on delegation doctrines to
invalidate congressional decisions investing substantial discretion in administrators.
30. Stewart, supra note 13, at 1802-13 (surveying reasons why judicial enforcement of
delegation doctrine is generally undesirable).
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BEYOND DELEGATION DOCTRINE
329
important societal needs. As developed below, new reconstitutive
strategies of regulation are appropriate in these areas. Adoption of
these strategies will require major new federal legislation. The ultimate solution to the delegation problem thus lies with the political
81
branches, not with constitutional adjudication in the courts.
II.
THE TRANSACTIONAL AND POLITICAL OVERLOAD GENERATED BY
CENTRALIZED PRESCRIPTION
It is no accident that the revival of interest in the delegation doctrine in recent years has coincided with a sweeping expansion of
centralized federal command and control regulation.3 2 We have become addicted to federal rules and orders that attempt to minutely
prescribe conduct throughout our complexly differentiated society.
This addiction has created severe decisionmaking and political overload at the center. In turn, overload has resulted in a massive transfer of decisional power to federal administrative bureaucracies,
provoking calls for vigorous enforcement by the courts of 33the delegation doctrine in order to restore "juridical democracy."
For the past several decades we as a nation have relied increasingly on centralized command and control regulation to achieve national goals of social and economic justice. This reliance has
created serious institutional strains. One is peculiar to Congress.
Faced with a crowded agenda and relatively high costs of reaching
agreement on specific measures, Congress has often delegated the
formulation of regulatory commands to federal administrators.
Such delegation, however, cannot cure the more general institutional problems involved in reliance on centralized directives to
achieve national goals.
31. The courts can, however, play a useful role in curbing the excesses of centralized
command and control regulation by applying principles of clear statement to limit the sweep
of such regulation where Congress has not plainly authorized it. See United States Dep't of
Transp. v. Paralyzed Veterans of Am., 106 S. Ct. 2705, 2713-14 (1986) (holding that lack of
congressional authorization forbids extension of discrimination laws to commercial airlines);
Bowen v. American Hosp. Ass'n, 106 S. Ct. 2101, 2123 (1986) (ruling that agency regulations
concerning health care for handicapped infants are invalid because Congress did not authorize agency's rulemaking). As I noted in 1975, this practice should extend to economic and
social regulation generally and should not be limited to protection of selected civil liberties.
Stewart, supra note 13, at 1786-87. 1 adhere to this position and therefore agree with the
similar views expressed in this symposium by Ernest Gellhorn, see Gellhom supra note 16, at
352, and elsewhere by Professor Schoenbrod. See Schoenbrod, supra note 9, at 1249-60.
32. Cf Houck, President X and the New (Approved) Decisionmaking, 36 AM. U.L. REv. 535,
536-45 (1987) (describing correlation between renewed interest in delegation doctrine and
recent efforts to expand presidential control over agencies' rulemaking).
33. See T. Lowi, THE END OF LIBERALISM 297-310 (2d ed. 1979) (arguing that active enforcement of delegation doctrine is best means to achieve juridical democracy); see also
Schoenbrod, supra note 9, at 1289-90 (arguing that properly focused delegation doctrine
helps ensure constitutional democracy).
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We are a vast, varied, and dynamic nation composed of many diverse institutions, including state and local governments, corporations and labor unions, and a huge variety of nonprofit religious,
educational, charitable, social, and advocacy organizations. Central
formulation of rules and orders to control in detail conduct within
these diverse institutions involves exorbitant information-gathering
and decisionmaking costs. 34 These costs are especially severe in the
case of the various environmental, health, safety, and antidiscrimination "social" regulatory programs that have arisen during
the past two decades. 35 Such programs seek wholesale change
throughout the entire society, in contrast to earlier "economic" regulation which was often limited to particular industries such as banking, transportation, or communications.
The officials responsible for implementing these comprehensive,
centralized programs of command and control regulation have
sought to reduce the high costs of making decisions by using
rulemaking to adopt relatively crude and uniform prescriptions.
Central decision makers would face intolerable burdens if they
sought to adjust general commands to the individual circumstances
of each actor in each regulated business firm or other organization.3 6 Standardized, inflexible prescriptions, however, are bound
to be excessively costly, burdensome, impractical, or simply irrational in many particular applications, creating widespread resentment on the part of those regulated.3 7 On the other hand, the
errors and distortions involved in devising and implementing centralized blueprints and their rapid obsolescence often prevent command and control regulation from delivering the swift and sure
changes in conduct promised, creating pervasive "implementation
gaps" and corresponding resentment on the part of regulatory
beneficiaries.
Regulation through centralized directives also creates serious
problems of political overload. Under the model ofjuridical democracy proposed by advocates of the delegation doctrine,3 8 Congress
itself must formulate the prescriptions governing conduct within
34. See generally K. ARROW, THE LaMrrs OF ORGANIZATION 32-58 (1974) (analyzing inherent limits on centralized decisionmaking); T. SowzLL, KNOWLEDGE AND DEcIsIONs 101-62
(1980) (same).
35. See Stewart, The Discontents of Legalism: Interest Group Relations in Administrative Regulation, 1985 Wis. L. REV. 655, 678-82.
36. See Latin, Ideal Versus Real Regulatory Effciency: Implementation of Uniform Standards and
"Fine Tuning" Regulatory Reform, 37 STAN. L. REV. 1267, 1292-97 (1985) (discussing difficulties
in tailoring centralized regulations to diverse and changing individual circumstances).
37. See E. BARDACH & R. KAGAN, GOING BY THE BOOK 43-78 (1981).
38. See T. LowI, supra note 33, at 298-309.
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BEYOND DELEGATION DOCTRINE
regulated organizations. The fundamental principle is that government may not coerce citizens except in accordance with legal authority granted through politically responsible processes of
representative government. The importance of this principle has
been reinforced by impressive evidence, marshalled by Professor
Lowi and others, showing that when Congress has delegated to
federal administrators the power to make prescriptive rules, parochial economic and ideological factions often dominate the process
through which the delegated power was exercised. 3 9 We no longer
accept James Landis' New Deal view that broad delegations to
administrative specialists could tap expertise in order to reduce
decisionmaking costs and errors without loss of democratic respon40
siveness and accountability.
Using the delegation doctrine to restore "juridical democracy,"
however, would not solve these problems and could make them
worse. The demands on Congress' agenda far exceed its capacity to
make collective decisions. Securing agreement by a majority of 435
representatives, a majority of 100 senators, and the President is typically an arduous, time-consuming, and difficult process. This eighteenth century legislative procedure is incapable of responsibly
making even the more basic of the myriad decisions entailed by a
regulatory strategy of centralized prescription. In these circumstances, vigorous enforcement of delegation doctrine would likely
produce one of two outcomes.
First, requiring that all regulatory statutes contain detailed rules
of conduct would increase substantially the costs and difficulty of
legislative agreement and greatly reduce the amount of legislation
enacted. Those who view legislation as generally pernicious might
welcome this development. 4 1 For all of the reasons developed in
Part I, however, this result would represent a sweeping, openended, and institutionally unacceptable judicial veto on the political
process.
Second, and in my view much more likely, Congress would respond by subdelegating the legislation function to congressional
committees or subcommittees whose decisions would in most cases
be ratified with little or no review by the entire Congress. 42 Because
39. See T. Lowi, supra note 33, at 105-07 (summarizing decline in law caused by excessive
delegation); see also B. ACKERMAN & W. HASSLER, CLEAN COAL/DIRTY AIR 23-54 (1981)
(describing interest group in-fighting centered on efforts to control administrative decisions).
40. SeeJ. LANDIS, THE ADMINISTRATIVE PROCESS (1938).
41. See Aranson, Gellhorn & Robinson, supra note 20, at 63-67 (arguing that vigorous
enforcement of nondelegation doctrine would have beneficial effect of reducing legislation
benefitting private factions).
42. Such subdelegations would include the conference committees that resolve
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the costs of agreement would be lower at the subcommittee level
than in Congress as a whole, internal delegation would enable Congress to maintain its legislative output despite the greater specificity
required by the courts. If, as Professor Schoenbrod asserts, there is
an "iron law of political intervention" in which organized interest
groups will inevitably exert an effective demand for government
measures which favor their interests, 43 then we should expect that
Congress, if faced with stringent judicial enforcement of delegation
doctrine, would resort to internal subdelegation in order to meet
that demand.
Subdelegation, however, creates serious problems of political responsibility. Decisional power is shifted to congressional subcommittee chairmen and staff and their bureaucratic and interest group
allies. 44 Policy is made through a submerged micropolitical process
without open and regular procedures. The hazards of subdelegation are apparent already in highly detailed tax or environmental
regulatory statutes. 45 Although Professor Schoenbrod finds the
Clean Air Act insufficiently specific to meet constitutional require47
ments, 4 6 the 115 pages that it occupies in the United States Code
contain a host of detailed "Christmas Tree" provisions designed to
benefit particular regions, industries, and interest groups. 48 Judicial
requirements that all regulatory statutes consist of detailed rules of
conduct would encourage far broader congressional use of such
provisions.
In practice, the legislative veto involved precisely the same sort of
House/Senate differences as well as administration representatives whose participation would
help ensure against presidential veto.
43. Schoenbrod, supra note 16, at 383.
44. See Bruff& Gellhorn, Congressional ControlofAdministrative Regulation:A Study of Legislative Vetoes, 90 HARV. L. REv. 7, 20-27 (1977) (analyzing political accountability and public participation problems posed by subdelegation).
45. See Surrey, The Congress and the Tax Lobbyist-How Special Tax Provisions Get Enacted, 70
HARv. L. REv. 1145, 1151-70 (1957) (analyzing congressional difficulty with complex statutory
schemes). Professor Schoenbrod would apparently have courts force Congress to enact more
detailed prescriptive statutes along the lines of the various amendments to the Clean Air Act,
42 U.S.C. §§ 7401-7642 (1982), Clean Water Act, 42 U.S.C. §§ 1251-376, and Resource Conservation and Recovery Act, 33 U.S.C. § 6901-6987. In my view, this approach does not promote wise or accountable policymaking because it gives enormous opportunities for economic
or ideological factions to determine governing law while escaping political accountability. See
B. ACKERMAN & W. HASSLER, supra note 39, at 116-28 (examining interest group influence in
the context of detailed environmental legislation).
46. Schoenbrod, Goal Statutes or Rules Statutes: The Case of the Clean Air Act, 30 UCLA L.
REv. 740, 748-51 (1983).
47. 42 U.S.C. §§ 7401-7642 (1982).
48. Professor Schoenbrod contends that the legislature's lack of time and the need for
the House, Senate, and President to agree on legislation mitigates against legislation that
targets, burdens, or benefits special interests. Schoenbrod, supra note 16, at 372-73. Such
reassurances ignore the fact that detailed statutes often serve to target benefits to private
factions. See supra note 45.
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BEYOND DELEGATION DOCTRINE
333
subdelegation to subcommittees. As Harold Bruff and Ernest Gellhorn have demonstrated, such subdelegations produce an invisible
faction-dominated decisionmaking process. 4 9 Enforcing the delegation doctrine in the name of constitutional fundamentalism would
thus encourage practices like those invalidated, also in the name of
constitutional fundamentalism, by Chadha.50 Accordingly, Professor
Lowi's solution to the ills of "interest group liberalism" could have
the ironic effect of spreading those ills and entrenching them in
statutes.
The iron laws of transaction costs make it impossible to achieve
adequate political accountability in a system of centralized command and control directives of conduct. Congress must in such a
system delegate most of the key decisions. Professor Kenneth Culp
Davis was among the first to grasp this fact and argue that delegation to administrative agencies was preferable to subdelegation
within Congress, provided that agencies were required to observe
procedural and other requirements designed to serve open, responsive, and reasoned decisionmaking. 51 This view was adopted by the
courts. 52 Instead of enforcing the constitutional doctrine against
legislative delegation, the courts have restructured administrative
law to extend procedural rights and judicial review to a wide range
of affected interests, create new procedures in rulemaking, and
more carefully scrutinize agencies' exercise of discretion. 53
Does internal delegation to congressional subcommittees produce sounder, more responsible government than delegation to
agencies backed by hearing requirements and judicial review?
Although I doubt that any firm, general conclusions can be reached,
there are good grounds for supposing that internal delegation does
not on balance lead to more desirable results. Unlike administrative
decisionmaking, subdelegated congressional decisionmaking often
is not subject to public input through regularly established procedures. It is not required to be based on a public record, and is not
subject to "hard look" judicial review. These requirements are not
imposed on legislators because of the supposed efficacy of political
49. See Bruff & Gellhorn, supra note 44, at 1473-84.
50. See INS v. Chadha, 462 U.S. 919, 944-59 (1983).
51. See 1 K. DAvIs, ADMINISTRATIV LAW TREATISE § 3.15, at 206-16 (2d ed. 1978) (arguing that delegation to administrative agencies promotes more efficient government).
52. See, e.g., Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 551-57 (1976)
(sustaining broad agency delegation in area of foreign relations and trade); United States v.
Southwestern Cable Co., 392 U.S. 157, 161-70 (1968) (upholding far-reaching regulatory
power of FCC); Arizona v. California, 373 U.S. 546, 549-54 (1963) (upholding administrative
authority to allocate water from interstate river).
53. See generally Stewart, supra note 13, at 1693-97.
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checks. These checks, however, are weakened grievously when decisions are made through congressional subdelegation.
It is true, as Professor Schoenbrod points out, that there are difficulties in securing effective representation for weakly organized interests in administrative decisionmaking. 54 Those difficulties,
however, apply to legislative decisionmaking with at least equal
force. As Professor Schoenbrod also points out, the requirements
that the House, Senate, and President concur in legislation can be
an important safeguard.5 5 The value of this safeguard would be diminished, however, if courts were to require more detailed legislation because it would be far more difficult for the public to learn the
practical effects of those details.
On the other hand, the courts' use of administrative law to oversee command and control decisionmaking by bureaucrats is no panacea. The transaction costs of the current system of administrative
central planning through litigation are enormous, as witnessed by
lengthy proceedings, swollen records, and mammoth opinions.
Whatever limited capacity might otherwise exist to coordinate the
various prescriptions issued by the central government has been
sapped by the tendency of the litigation system to deal with each
controversy in isolation. 5 6 Moreover, shifting power to judges and
litigants is hardly a promising recipe for enhancing political
responsibility.
These problems have led some to favor an increased role for the
presidency. Other contributions to this symposium ably document
the political and legal controversy generated by recent efforts to
strengthen and regularize the control exercised by the White House
and the Office of Management and Budget (OMB) over agency
rulemaking and regulatory policy. 5 7 Although I am not unsympathetic to such efforts, which would move the United States closer to
the practices of other industrialized democracies, 5 8 I do not believe
that they can solve the basic problems of central overload produced
by excessive reliance on prescriptive regulation.
54. Schoenbrod, supra note 16, at 374-75.
55. See id. at 356 (noting safeguards inherent in tripartite system). As was true of the
measure invalidated in Chadha, however, House and Senate votes often are not recorded. INS
v. Chadha, 462 U.S. 919, 922 (1983).
56. This conclusion is documented in S. MELNICK, REGULATION AND THE COURTS 105-73
(1983).
57. See Houck, supra note 32, at 536-45 (describing recent efforts to exercise control over
agencies through OMB); Pierce, supra note 15, at 406-07 (noting expansion of OMB review
power).
58. SeeJ. MASHAW, BUREAUCRATIC JUSTICE 226-27 (1983) (suggesting alternatives tojudicial review implemented by other nations); Liebman & Stewart, Book Review, 96 HARv. L.
REv. 1952, 1967-70 (1983) (reviewingJ. MASHAW, BUREAUCRATIC VISION (1983)).
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BEYOND DELEGATION DOCTRINE
OMB has only a limited capacity to evaluate, supervise, and coordinate the myriad specialized decisions made by the ranks of federal
agencies. More important, this limited capacity can only be
achieved by extensive subdelegation within the institutional presidency. The "Commander-in-Chief" rationale for increased OMB
review power is an appealing one. 59 The harsh reality, however, is
that the presidency can no more escape the iron law of transaction
costs than can Congress. The many specific decisions that must be
made by subordinates within OMB and other subunits within the
White House are too remote from the attention and commitment of
the President and his chief lieutenants, and too vulnerable to real or
apparent infection by bureaucratic or interest group parochialism,
to provide adequate guarantees of political responsibility for the
mass of regulatory commands that continue to gush forth from the
Federal Register. OMB review cannot effectively ameliorate the inescapable rigidities, inefficiencies, and inequities involved in attempting to mandate conduct throughout a vast nation through
central directives. The only real solution is to forswear our excessive addiction to centralized prescription.
III.
RECONSTITUTIVE STRATEGIES OF REGULATION
The delegation dilemmas created by centralized prescription can
be greatly alleviated by transferring responsibility for detailed decisionmaking out of the central government to other institutions and
organizations such as the market, collective bargaining, or state and
local government. Outright deregulation and devolution is one version of this strategy. Deregulation at the federal level has achieved
significant success in several areas, including communications and
airline transportation. 60 A number of continuing economic regulatory programs, such as agricultural marketing orders, should also be
scrapped. As presently constituted, however, the market and the
federal system of decentralized state and local government cannot
adequately secure important societal goals in such areas as the environment, health, and safety. Command and control regulation by
federal officials, whether legislative, executive, or judicial, is the prevailing response to these institutional deficiencies. It is not, however, the only possible response. The alternative is to reconstitute
such institutions in order to ensure that national goals are served
59. The "Commander-in-Chief" rationale, allowing subdelegation within the executive
branch, reaches back at least to Myers v. United States, 272 U.S. 52, 73 (1926) (affirming
presidential authority to remove executive officials without congressional consent).
60. See G. EADS & M. Fix, RELIEF OR REFORM?: REAGAN'S REGULATORY DILEMMA 70-80
(1984).
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without detailed central prescription of conduct. 6 1
Constitutive law consists of rules that make legally recognized
practices possible. Examples of such practices include the making
of contracts, the holding of elections, or the adjudication of disputes. Legal and social institutions, such as the market or the federal structure of our government, are composed of such practices.
Constitutive rules thus create or establish institutions.
Prescriptive law consists of rules or orders specifying conduct that
is prohibited or mandated within the context of a particular practice
or institution. Examples of prescriptive law include prohibitions on
the misappropriation of trade secrets or the taking by government
of private property without just compensation.
Constitutive rules necessarily have prescriptive elements. Prescriptions are needed in order to define and protect constituent endowments, ensure compliance with decisional rules, and limit the
jurisdictional authority of the various institutions and organizations
that make up the greater society. For example, markets are constituted in important part by prescriptions against theft, duress, and
the selling of votes. On the other hand, prescriptive rules are created by constitutive processes, such as those established by contract
law or article I of the Constitution.
There remains, however, a key difference between prescriptive
and constitutive rules that is of great importance in the choice of
strategies to harmonize institutional decisions and national norms.
Prescriptive rules specify and dictate required conduct. Accordingly, the use by federal authorities of prescriptive directives inevitably involves preemption of the values of those regulated. Regulated
decision makers must act as federal officials direct. Constitutive
rules, by contrast, explicitly contemplate and allow institutional decision makers a substantial measure of discretion that permits incorporation of institutional interests and values in their decisions.
Reconstitutive strategies promote institutional adherence to national goals by restructuring the constitutive law of such institutions
rather than simply preempting it by dictating outcomes. Such reconstitution may be achieved by altering the definition or allocation
of endowments within an institution, changing its decisionmaking
rules, or modifying its jurisdictional competence. One option is to
retain an institution's existing decisional procedures but modify
constituent endowments. For example, innovation within competitive markets can be encouraged by congressional enactment of pat61. The analysis which follows draws heavily on Stewart, Reconstitutive Law, 46 MD. L.
REV. 86 (1986).
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BEYOND DELEGATION DOCTRINE
ent, copyright, and trade-secret laws that create incentives for such
innovation. Similarly, the national government may impose a tax on
pollution or offer matching grants for specific local services. Another option is to modify institutions' decisionmaking procedures
by, for example, adopting a one-person, one-vote rule for state and
local elections, requiring administrators to afford hearings to those
affected before making decisions, or promoting collective bargaining. As a final option, subsystem jurisdictions may be altered. For
example, the areas of economic life governed by markets policed by
antitrust laws 62 may be expanded or contracted in relation to competing regimes of regulation or collective bargaining.
Although reconstitutive strategies for promoting national goals
are more indirect than command and control regulation, directness
is not synonymous with efficacy, as the record of federal antitrust
law and labor law demonstrates. 63 Reconstitutive strategies have a
number of advantages over prescriptive ones. They reduce centralized information processing overload. Once reconstitution is
achieved, most of the relevant decisions are made within subsystems
rather than at the center. Reconstitution also avoids the dysfunctional rigidities and uniformities of centralized prescription while
furthering decentralization and diversity. Reconstitutive strategies
also promote greater political responsibility at the center. By reducing the need for federal officials to prepare and enforce detailed
blueprints for conduct, reconstitutive strategies respect the iron law
of transaction costs. Rather than being overwhelmed with countless
prescriptive details, Congress and the President can assume and exercise responsibility for choosing basic national goals and selecting
means of reconstituting subsystems to achieve them.
History has demonstrated the advantages of reconstitutive strategies in business organization, as historian Alfred Chandler, Jr. and
economist Oliver Williamson have shown. 64 The original structure
of the modern corporation took the unitary or "U" form, with cor62. Antitrust law is a prime example ofa reconstitutive strategy. See S. BREYER, REGULATION AND ITS REFORM 156-57 (1981) (analyzing antitrust efforts to maintain competitive conditions of marketplace rather than directly replicating results of competition).
63. See id. (discussing success of reconstitutive strategies in antitrust laws).
64. See A. CHANDLER, STRATEGY AND STRUCTURE 484 (1966) [hereinafter CHANDLER,
STRATEGY] (showing how managerial decisions within modern business organizations replace
market mechanisms in coordinating economic activities and allocating resources); A. CHANDLER, THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS
249-52 (1977)
(describing how large corporations have changed corporate structures to manage expanding
scale of operations); 0. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM 274 (1985)
[hereinafter WILLIAMSON, CAPITALISM] (discussing importance of corporate form as response
to transaction costs of coordinating business activities); Williamson, The Modern Corporation:
Origins, Evolution, Atrnbutes, 19J. ECON. Lrr. 1537, 1540 (1981) (analyzing changes in corporate organization).
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:323
porate departments organized along functional lines such as manufacturing and marketing. 6 5 With the growth in the size of
corporations, it became increasingly difficult to coordinate the activities of different functional divisions through commands issued from
the center. 6 6 Transaction costs mushroomed and the problems of
securing divisional fidelity to overall corporate goals increased. 67
During the 1920s, General Motors and DuPont took the lead in
reconstituting the internal organization of the corporation. 68 They
eventually developed a multidivisional or "M" form structure, in
which each subgroup operates as an independent profit center, responsible for manufacturing, marketing, and all other aspects of
producing and selling a distinct product or group of products. 6 9
The central management limits its functions to long-range planning,
providing financial, legal, and other services to the divisions, and
allocating capital among them.70 Central management rewards
those divisions earning a higher return on capital with more resources and higher manager compensation, reducing transaction
costs and strengthening incentives for profitability. 7 1 This reconstitutive strategy has been tremendously successful in the context of
very large business organizations and has been widely adopted.7 2
Analogous reconstitutive strategies could be developed to replace
the current reliance on centralized directives in federal regulatory
programs. For example, the current system of federal command
and control regulation of air and water pollution could in large part
be replaced by a system of transferable pollution permits. 7 3 The
current system relies on uniform federal rules and implementing orders to dictate the degree of pollution control required of each of
hundreds of thousands of sources. Under an alternative reconstitutive strategy, the federal government would determine the maximum amount of pollution permitted in a given region or state.
Permits to discharge pollution would be issued in numbers equal to
this amount and allocated among pollution sources by auction or
0. WILLIAMSON, CORPORATE CONTROL AND BUSINESS BEHAVIOR 110-1 1 (1970).
66. See CHANDLER, STRATEGY, supra note 64, at 382-83; WILLIAMSON, CAPITALISM, supra
note 64, at 280-81.
67. WILLIAMSON, CAPITALISM, supra note 64, at 280.
68. CHANDLER, STRATEGY, supra note 64, at 126-27.
69. WILLIAMSON, CAPITALISM, supra note 64, at 280-81.
70. See id. at 289-90 (noting that central management in M form corporation is primarily
responsible for major decisionmaking and periodic supervision of divisional lines).
71. 0. WILLIAMSON, supra note 65, at 129.
72. See id. at 117.
73. See Ackerman & Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1342
65.
(1985).
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BEYOND DELEGATION DOCTRINE
339
otherwise. 74 Thereafter, permits could be bought and sold freely.
Each source would be free to decide how much to clean up and how
many permits to buy. 7 5 This flexibility would allow sources that can
clean up more cheaply to assume more of the abatement burden,
saving society tens of billions of dollars over the existing system of
uniform prescription.
The fact that sources would have to pay for the pollution they
emit would provide a continuing incentive to develop environmentally superior production and control technologies. Limiting the
number of permits issued would ensure that the aggregate pollution
emitted by all firms does not exceed the chosen maximum. Future
decreases in pollution could be achieved by amortizing the permits
on a fixed schedule. By making the air and water property interests
created by the existing prescriptive system transferable, this alternative would harness the mechanisms of the market to serve new social
concerns. A similar strategy eventually might be developed to deal
with other environmental harms, such as the risks created by pesticides, toxic chemicals, and toxic wastes.
Other economic incentive systems, relying either on the creation
of new forms of transferable property interests or on taxes or subsidies, have been or could be developed to replace prescriptive controls over commercial activity in such areas as waste treatment and
recycling, land and water resource use, employment safety, unemployment, and inflation. 76 New tax or liability rules could be used to
discourage socially undesirable conduct, such as the operation of
unsafe workplaces. Expanded use of vouchers and similar systems
could replace command and control federal regulation in housing,
education, health care, and other social service programs. 7 7
Economic incentives, moreover, are but one form of reconstitutive strategy. Other forms require or encourage new decisionmak74. For example, permits might simply be given to existing sources in amounts equal to
the pollution that they are permitted to discharge under existing regulations.
75. The government would, of course, have to prohibit a source from discharging pollution in excess of the amount for which it holds permits.
76. See W. Viscusi, EMPLOYMENT HAZARDS: AN EXAMINATION OF MARKET PERFORMANCE 4
(1979) (discussing incentive systems for occupational safety); M. WErIZMAN, THE SHARE
ECONOMY 1-9 (1986) (suggesting use of alternative compensation systems that allow employees to share profits and help curb stagflation). See generally Stewart, Economics, Environment,and
the Limits of Legal Control,9 HARV. ENVTL. L. REV. 1, 11-20 (1985) (discussing various economic
incentive systems as alternatives to prescriptive regulation).
77.
Rose-Ackerman, Social Services and the Market, 83 COLUM. L. REV. 1405, 1406 (1983)
(analyzing use of proxy shopping as quality control device by government agencies and private charitable organizations that provide subsidy funds to suppliers of social services). Professor Rose-Ackerman also has proposed use of economic incentives to replace prescriptive
strategies for controlling administrative decisionmaking. Rose-Ackerman, Reforming Bureaucracy Through Economic Incentives, 2J. LAw, ECON. & ORG. 131, 135-40 (1986).
340
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:323
ing procedures and structures. Occupational risks provide a case in
point. Occupational safety and health regulation by the federal government is thought to be necessary because workers are often
poorly informed about occupational hazards 78 and may lack the collective resources and bargaining power to deal effectively with
them. 79 Centralized OSHA directives are not, however, the only
means of dealing with this problem. The federal government could
require employers to disclose information about occupational
hazards to workers or undertake the job itself. Employers could be
required to hire occupational health and safety professionals, chosen jointly by employers and employees, to monitor risks and correct hazards. Occupational health and safety could be made a
mandatory subject of collective bargaining or employment contracts. 8 0 The current system of labor law could be reconstituted to
promote unionization. 8 ' These steps could well be more effective in
reducing workplace hazards than the current patchwork and inherently clumsy system of centralized regulation.8 2 They would decentralize decisionmaking responsibility to those most directly affected,
enabling employers to choose the most cost-effective means of dealing with hazards and giving workers a collective voice in deciding
the appropriate levels of risk in their workplace.8 3
A third reconstitutive approach is to alter the jurisdictional competence of different constitutive legal systems. Deregulation is one
example of this approach, replacing administrative governance of
particular sectors of the economy with governance by market laws.
Straightforward deregulation is an appropriate and desirable form
of reconstitution in some sectors. In other sectors, however, economies of scale and other considerations dictate more complex forms
of restructuring. For example, as Professor Pierce has shown, deregulation of the electricity industry should take into account the
78. W. ViscusI, supra note 76, at 2.
79. See W. KREPS, P. MARTIN, R. ROBINSON & G. SOMERS, CONTEMPORARY LABOR EcoNOMICS AND LABOR RELATIONS: ISSUES, ANALYSIS, AND POLICIES 236-37 (2d. ed. 1980) (noting
that unionized workers receive much higher wage differentials as compensation for workplace
risks than do non-unionized workers and also have superior access to risk information).
80. See L. BACOW, BARGAINING FORJOB SAFETY AND HEALTH 60 (1980) (arguing that gov-
ernment should provide, through collective bargaining processes, joint action by labor and
management to abate job hazards).
81.
See Weiler, StrikingA New Balance: Freedom of Contract and the Prospectsfor Union Represen-
tation, 98 HARV. L. REV. 351,405 (1984) (analyzing methods to reconstruct labor-management
relations in order to promote unionization).
82. See L. BACOW, supra note 80, at 60-87 (noting examples showing efficacy of collective
bargaining in reducing job hazards).
83. Nothing requires us to rely exclusively on a reconstitutive or a prescriptive strategy.
Occupational health and safety may be one area where a mixed approach, relying on a combination of such strategies, may be most appropriate.
1987]
BEYOND DELEGATION DOCTRINE
potential desirability of structuring the generating, transmission,
and local distribution aspects of the industry along quite different
84
lines.
These reconstitutive strategies affirm the need for national initiative to deal with major social and economic problems. Unlike the
prevailing reliance on centralized prescription, they respect institutions' legitimate interests in autonomy and reduce overload at the
center 8 5 Congress' need to delegate decisions to central bureaucracies would be reduced. Detailed implementation decisions
would be shifted from federal administrators to business firms,
workers, and state and local governments. This shift would greatly
reduce the current reliance on adversary processes and judicial review to control the myriad detailed economic, engineering, and scientific decisions made by federal administrators. The normative
strain recently exhibited by federal administrative law, which has reinforced unease about the constitutional position of administrative
agencies, can be attributed in large part to problems generated by
excessive reliance on centralized prescriptive strategies.
Proponents of the delegation doctrine often seem to have assumed that prescription is the only or principal means of regulating
conduct. Professor Lowi's demand for "juridical democracy" and
"democratic formalism" seems to envisage a statutory universe of
detailed prescriptions.8 6 Professor Schoenbrod's ideal of "rules
statutes" evokes the same universe of centralized command and
control directives.8 7 They would simply have a greater proportion
84. See Pierce, Deregulating the Marketfor Bulk Electric Power, 72 VA. L. REV. 1183 (1986).
85. Others have proposed more radical reconstructions involving a far more extensive
degree of decentralization and political transformation than envisioned here. See Frug, The
City as a Legal Concept, 92 HAtav. L. REV. 1059, 1150-53 (1980) (arguing that granting cities
legal rights now reserved for private corporations will enable persons to participate actively in
basic societal decisions); Unger, The CriticalLegal Studies Movement, 96 HARV. L. REV. 563, 664
(1983) (advocating experimental revisions of social life). Other "left" reconstitutive strategies
are proposed in B. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLrICS FOR A NEW AGE xi
(1984).
The program proposed in this essay, while moderately ambitious, is essentially reformist in
that it seeks to maintain the essential features of a liberal capitalist polity.
86. See T. Lowi, supra note 33, at 310-14 (elucidating goals of '"juridical democracy").
87. In his previous writings, Professor Schoenbrod has repeatedly singled out command
and control prescription as the model of a rules statute. See Schoenbrod, supra note 9, at
1252-60 (arguing that Congress should frame statutes in terms of prescriptive rules rather
than in terms of goals to be defined and implemented through prescriptive rules issued by
administrators). Reconstitutive strategies are fundamentally different than either the goals or
rules models discussed by Professor Schoenbrod, both of which ultimately depend on prescriptive strategies.
In his contribution to this symposium, Professor Schoenbrod asserts that he supports
greater use of reconstitutive strategies of regulation, and that such strategies can be consistent with a requirement that congressional regulatory statutes contain conduct rules. Schoenbrod, supra note 16, at 368. I, of course, welcome unreservedly his support of reconstitutive
strategies. Such strategies may indeed be consistent with a rules requirement because they
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:323
of centralized prescriptions appear in the United States Code rather
than the Federal Register. This vision is doomed, however, by the
iron law of transaction costs, and is totally inconsistent with the values and necessities of a complex liberal society.
We need broad delegations to achieve national goals. The delegations required by prescriptive regulation, however, are the wrong
type of delegation to the wrong people. Rather than giving federal
agencies and reviewing courts the responsibility for designing detailed conduct blueprints or subdelegating power within Congress
and the presidency, we should give decisional power back to the various decision makers within the various economic, governmental,
and social institutions of our society, transmitting the delegation
through new structures that will align their decisions with national
goals.
Reconstitutive law is not the appropriate means of scrutinizing national objectives in all cases. Prescriptive law is far more appropriate for securing core civil rights, such as the right to be free from
racial discrimination. Such rights should be nationally uniform, and
are vindicated most appropriately by imposition of correlative legal
duties. Regulation of discrimination through a system that allows
employers or sellers to discriminate the payment of a fee would demean our national commitment to civil rights, even assuming that
such a strategy was equally or more effective than prescriptions in
reducing discrimination. In still other areas of regulation, such as
airline safety, prescriptive regulation may be preferable because it is
more reliable and effective than other approaches.88 But in many
other contexts there are opportunities for far greater use of reconstitutive strategies to advance federal regulatory goals.
It will not necessarily be easy to devise and win political support
for congressional legislation to eliminate existing prescriptive systems of regulation and adopt reconstitutive alternatives. Increasing
congressional reliance over the past two decades on prescriptive
strategies is the product of powerful political forces, including the
incentives of legislators to use legislation to target benefits to particular interest groups. This targeting often can be achieved most efrely on changes in constitutive rules to accomplish regulatory objectives. I would not wish to
impose a requirement, however, that all of the relevant rules be made by Congress. For example, under a transferable pollution permit system, it might be appropriate for Congress to
delegate to federal administrators the initial decision as to what levels of discharges should be
allowed. I also would favor giving the states or regional authorities extensive discretion as to
how permits should be distributed.
88. See Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL STUD. 357, 369
(1984) (noting that prescriptive regulations often are preferred when it is feasible for government to identify and control risky aspects of conduct).
1987]
BEYOND DELEGATION DOCTRINE
343
fectively through centralized prescription, rather than more
generalized reconstitutive strategies.8 9 Regulatory agencies, regulated firms, and environmental and consumer advocacy groups have
invested heavily in the prevailing system of regulation. In the face
of these obstacles, I am buoyed by Professor Pierce's optimism
about the political prospects for reconstitutive strategies.9 0 I believe that Professor Pierce has correctly assessed the systemic, political implications of Chadha, Synar, and other recent decisions making
clear that executive officials have the discretion, subject to only limited judicial review, to resolve policy issues left open by statutes. 9 1
As he points out, these decisions serve to make Congress' decisionmaking responsibility clear and increase its incentives to exercise
that responsibility. The courts cannot and should not do more than
this. In particular, courts should not attempt to use the delegation
doctrine as a weapon to force Congress to legislate more responsibly. For the several reasons already set forth, such judicial efforts
would likely have the opposite effect from that intended. Hard work
will be needed to devise and secure the adoption of reconstitutive
solutions to the central overload and political irresponsibility generated by our prevailing reliance on command law. The energies of
academic lawyers, policy analysts, political scientists, and others
should be centered on this task, not on supposed constitutional solutions that, in the end, can solve nothing. Here as elsewhere administrative law must escape its preoccupation with what judges say
92
and do, and embrace a broader perspective and responsibility.
89. Reconstitutive strategies, however, can also be exploited to target benefits to special
interests. See S. SURREY & P. MCDANIEL, TAX EXPENDITURES 25 (1985) (explaining that tax
preferences in federal law are actually government spending programs operated through tax
laws).
90. Pierce, supra note 15, at 410-13.
91. See id. at 411-12.
92. See B. ACKERMAN. RECONSTITUTING AMERICAN LAW 5 (1985).