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What Do Agencies Do That Congress Can’t?

Congress can identify problems that need to be solved but cannot always devise proper solutions. Professor Christopher Walker explains that this is where the role of administrative agencies comes in. Agencies pass specialized rules and regulations to solve problems. The vast majority of laws that govern daily life now come from agencies, rather than Congress. The question is - how can such agencies be held accountable for their actions when they are unelected? https://youtube.com/watch?v=jfwwjOtUpXo


The purpose of federal agencies is to help implement laws. Congress identifies these issues that are of importance that they want to have fixed like seat belts or air pollution. Federal agencies are the ones that are there to address those issues. So, when you're thinking about what federal agencies do, I think there are three main buckets. They make rules or regulations, most of the time through notice and comment rulemaking. They adjudicate disputes over government benefits, over licensing and permitting. And they bring enforcement actions to enforce the law that Congress has given us. And so you have these tensions between agencies as an Article I institution that they're making laws, as an Article II institution that they're enforcing those laws, and as an Article III institution in that they're actually judging, adjudicating disputes. In fact, most of the law making, most of the laws that we have today are not made by Congress. They're made by federal agencies, and that's an uncomfortable tension. Federal agencies aren't technically part of Congress. They're not part of Article I. They don't legislate. And yet the vast majority of laws that are made today are made by federal agencies, not by Congress. For instance, in the two year period of 2015 and 2016, federal agencies promulgated over 7,000 final rules compared to Congress that passed just a little over 300 public laws. So, the vast majority of restrictions of laws that we face today as an everyday citizen we find and we get from federal agencies, not from Congress. We're facing new problems and new challenges when you have unelected bureaucrats doing most of the lawmaking that you have today and the political branches, and Congress in particular, reaping the rewards of that administrative lawmaking. They take the credit when the agencies do something good, but they're not accountable when the agencies do something bad. They just blame the agencies for the failure. So, this creates a system where the democratic checks don't play their proper role.

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