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Power Without Responsibility / Edition 1

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Overview

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.

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Editorial Reviews

Kirkus Reviews
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 itsconsequent 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.
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Product Details

  • ISBN-13: 9780300065183
  • Publisher: Yale University Press
  • Publication date: 8/30/1995
  • Edition description: Reissue Large Print
  • Edition number: 1
  • Pages: 274
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.62 (d)

Table of Contents

Preface
Acknowledgments
Pt. I Introduction
1 The Nub of the Argument 3
Pt. II Evolving Ideas of Delegation
2 The Vain Search for Virtuous Lawmakers 25
Pt. III Delegation in Practice
3 Broad Delegation: Regulating Navel Oranges 49
4 Narrow Delegation: Regulating Air Pollution 58
5 How Delegation Changes the Politics of Lawmaking 82
Pt. IV Is Delegation Good Policy?
6 Delegation Weakens Democracy 99
7 Delegation Endangers Liberty 107
8 Delegation Makes Law Less Reasonable 119
9 Congress Has Enough Time to Make the Laws 135
Pt. V The Courts Should Bar Delegation
10 The Constitution Prohibits Delegation 155
11 Why the Courts Should Stop Delegation (and Nobody Else Can) 165
12 How the Courts Should Define Unconstitutional Delegation 180
Pt. VI Conclusion
13 America Is No Exception 195
Notes 199
Index 256
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