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Can We Make Congress Legislate Again?

Congress does not seem to legislate much anymore. One consequence is that federal agencies are left trying to address contemporary problems under authorities delegated by Congress years—and in many cases decades—ago. Depending on the nature of the program, this can mean that agencies are forced to use obsolete statutory authorities that may not reflect contemporary knowledge or understanding of the relevant issues, let alone contemporary political support. And because the legislative process has a strong status-quo bias, it can be difficult to update federal law on a regular basis to address obsolescence concerns.

In the environmental context, for example, there has been relatively legislative action over the past twenty years. Other than the Toxic Substances Control Act, none of the major environmental statutes has been meaningfully revised this century. (There have been minor revisions to select provisions of the Safe Drinking Water Act and CERCLA, aka “Superfund.”)  But it’s not as if environmental problems, and our understanding of such problems, has stood still. In some cases, the Environmental Protection Agency (EPA) is able to address contemporary problems with extant authorities. In others, however, extant authorities do not cut it.

A related problem is that delegations of authority enacted decades ago remain on the books long after the problems they were enacted to address have passed. Such delegations remain on the books to be deployed in new circumstances without legislative approval. So, for instance, President Trump invoked the International Emergency Economic Powers Act in 1977 (IEEPA) to impose tariffs on Mexico in response to an alleged illegal migration
“crisis.” Whether or not one believes there is an “emergency” at the southern border, no one can seriously maintain that this is the sort of problem Congress sought to delegate authority to the President to address with the IEEPA, yet the authority exists, and is difficult to repeal.

Many of the problems cause by obsolete statutory authority would be addressed were Congress willing or able to revisit such laws on a more regular basis. Is such a thing conceivable? Perhaps, or so Chris Walker and I argue in our paper “Delegation and Time.”

Legislatures at all levels of government have found that one way to induce more regular legislative engagement and revision of existing statutory programs is through various forms of temporary legislation—legislation that expires, sunsets, or reverts to a particular baseline if not regularly reauthorized or re-approved by the legislature. As experience across a wide range of subject areas shows, meaningful reauthorization requirements can induce legislative action, which can help address concerns about statutory obsolescence as well as concerns about democratic legitimacy.