Path-breaking study by Schoenbrod (Law/New York Law School) of the
pernicious effect of Congress's delegation of power to various
federal agencies. Schoenbrod argues that the provisions of Article
I of the Constitution that invest legislative power in the Congress
have been systematically subverted by Congressional delegation of
power to agencies - a practice, he notes, that the Supreme Court
rejected until the Court-packing controversy of the 1930's forced
it to grant implicit permission. Moreover, he contends that from
whatever ideological position one looks at such delegation, the
result has been to subvert democratic government (and it's notable
that the galley of this book carries blurbs from Americans both
right - e.g., Robert Bork - and left - e.g., the president of the
ACLU). Delegation has caused lawmakers to construct statutes of
overwhelming complexity; to take credit for apparent solutions that
solve nothing; to obtain political contributions for affected
industries; and to blame agencies for inevitable failures. In one
of several devastating case studies, the author analyzes how the
orange-growers' cooperative, Sunkist, has used its political power
to dominate the Department of Agriculture's marketing board; to
exclude consumer interests; to prevent funds from being used to
organize a referendum of all orange-growers (the majority of whom
may be opposed to Sunkist's practices); and to prevent even a list
of orange-growers from being released - all in the interest of the
preservation of "orderly markets." Schoenbrod says that such abuses
can be rectified - but that it's up to the Supreme Court to do so,
by reigning in Congressional delegation and its consequent
regulatory-agency fiascoes. He shows persuasively that Court action
would help the public interest by reducing "a regulatory system so
cumbersome that it needlessly stifles the economy, and so complex
that it keeps the voters from knowing whom to hold accountable for
consequences." An original and devastating analysis that may have
considerable political impact. (Kirkus Reviews)
This book argues that Congress's process for making law is as
corrosive to the nation as unchecked deficit spending. David
Schoenbrod shows that Congress and the president, instead of making
the laws that govern us, generally give bureaucrats the power to
make laws through agency regulations. Our elected "lawmakers" then
take credit for proclaiming popular but inconsistent statutory
goals and later blame the inevitable burdens and disappointments on
the unelected bureaucrats. The 1970 Clean Air Act, for example,
gave the Environmental Protection Agency the impossible task of
making law that would satisfy both industry and environmentalists.
Delegation allows Congress and the president to wield power by
pressuring agency lawmakers in private, but shed responsibility by
avoiding the need to personally support or oppose the laws, as they
must in enacting laws themselves. Schoenbrod draws on his
experience as an attorney with the Natural Resources Defense
Council and on studies of how delegation actually works to show
that this practice produces a regulatory system so cumbersome that
it cannot provide the protection that people need, so large that it
needlessly stifles the economy, and so complex that it keeps the
voters from knowing whom to hold accountable for the consequences.
Contending that delegation is unnecessary and unconstitutional,
Schoenbrod has written the first book that shows how, as a
practical matter, delegation can be stopped.
General
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