The Clean Air Act relied on a type of governance that is ubiquitous in federal law. Congress lays out a broad policy — in this case, that power plants must use the “best system of emission reduction” — and then delegates to the EPA the task of implementing that policy through a series of binding regulations.
Countless federal statutes rely on a similar structure. The Affordable Care Act, for example, requires health insurers to provide certain preventive treatments — such as
birth control, many vaccinations, and cancer screenings — at no additional cost to patients, and it delegates the task of determining which treatments belong on this list to experts at the Department of Health and Human Services. The Department of Labor may raise the salary threshold governing
which workers are eligible for overtime pay, in part to keep up with inflation.
There are several reasons why this sort of governance, where a democratically elected legislature sets a broad policy and then delegates implementation to a federal agency, is desirable. For one thing,
Congress is a dysfunctional mess. If a new act of Congress were required every time environmental regulators wanted power plants to install new technology, it’s likely that those plants would still be using devices that were on the cutting edge in 1993.
Delegating power to agencies also ensures that decisions are made by people who know what they are doing. Imagine, for example, if Congress had to pass a law every time the Food and Drug Administration wants to make a new drug available to the public. Even if Congress had time to vote on such a decision, most members of Congress know very little about biology, chemistry, or medicine.
Delegation also insulates important decisions from political horse-trading. The decision about whether to approve a new drug should be made by scientists in the FDA, not by lawmakers who might be concerned that the drug’s manufacturer is in Arizona, and that they need to butter up Sen. Kyrsten Sinema (D-AZ) to secure her vote for the Build Back Better Act.
Nevertheless, a majority of the Supreme Court is very hostile to the idea that federal agencies should be allowed to set policy, and at least five justices have signaled that they want to revive a largely defunct constitutional doctrine known as “
nondelegation.”
