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On June 18, 2019, the Federalist Society's Article I Initiative and Regulatory Transparency Project hosted a panel on "Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?" at the National Press Club in Washington, DC.
In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” published in the Texas A&M Law Review, Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. Those ostensibly elected to oppose further regulation can argue that any proposed rule changes are out of their control. Conversely, representatives elected to increase regulation can blame agency heads for not following the intent of the authorizing statute. However, both sides avoid blame by the electorate.
What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?
As always, the Federalist Society takes no position or particular legal or public policy issues. All opinions expressed are those of the speakers.