By Austin Bussing
From repeated, thinly-veiled threats to fire Special Counsel Robert Mueller to drastic tariff hikes on steel and aluminum, the administration of president Donald J. Trump has frequently provoked one fundamental question from the public: “Can he do that?”
And often, the answer is some variation of, “legally, yes.”
The president and the branch he leads derive substantial power from the ambiguity of Article II, the section of the Constitution that establishes the executive branch. Supplementing this power is the considerable discretion often delegated to the president and other executive branch actors in statutes passed by Congress. Discretion delegated by the Trade Expansion Act of 1962, for example, provided the justification for President Trump’s recent 25% tariff hike on steel and aluminum.
This trend is certainly not confined to presidents digging up justifications for action in decades-old statutes. The reauthorization of the Toxic Substance Control Act, passed by large bipartisan margins in the 114th Congress, gives the Administrator of the EPA the discretion to exempt certain chemicals from agency regulation -- a power that congressional Democrats and environmental groups are now concerned Scott Pruitt may be abusing.
The U.S. Congress legislates on virtually every topic imaginable -- from space exploration to financial services to social media. And while many of the laws passed by Congress are focused on renaming post offices or slightly amending the boundaries of publicly-owned land, Congress will occasionally pass major, substantive legislation. When it does so, Congress can either specify solutions to these problems internally, or it can vest actors in the executive branch with the authority and discretion to solve these problems as they see fit.
Inherent in this decision is a tradeoff. Making specific policy internally is a costly activity for members of Congress, in that it takes time that could be spent on electorally-valuable activities, like constituent services or fundraising. Delegating saves time, and also puts policy decisions in the hands of experts who are theoretically well-equipped to make them. However, delegation also makes members of Congress susceptible to agency loss, in which executive branch actors use their informational advantage to promulgate policies that run counter to the desires of their principals in Congress.
Does it matter whether policy decisions are made in the legislative branch or the executive branch? It depends on who you ask. There are some who are concerned about what they see as the overreach of the administrative presidency and the legislature’s abdication of its constitutional policymaking authority. Others, however, argue that the institutional structure of Congress dooms the branch to a hopelessly parochial orientation, rendering it uniquely unfit to make cohesive and effective policy at a national level. Proponents of this rationale argue that the president and other executive branch actors should make important policy decisions, as they have both the incentive and the capacity to make informed policy for the whole country.
Regardless of one’s normative perspective on the matter, there remains an open empirical question about when Congress decides to delegate authority to the executive branch and which factors play a role in the decision about whether or not to delegate. In an ongoing research project, I seek to explain the role of House committees in congressional decisions to delegate or specify policy details.
Congressional committees are thought to be comprised of legislators with specific interest or expertise in policy areas over which they are given jurisdiction. Some scholars have argued that these specialized bodies are the congressional answer to the informational advantage held by the executive branch. However, given large cuts to House committee staff and other institutional reforms that have centralized authority in majority party leadership, it is unclear whether or not committees have the capacity to play this role. In my research, I seek to assess which committee characteristics are associated with the capacity to write specific policy in markup. Additionally, I aim to identify the political circumstances that will motivate committee members to use this capacity, as opposed to using markup as an opportunity to delegate more discretion to the executive branch.
Looking at bills reported out of House standing committees from the 105th-114th congresses, I track how legislation changes from introduction through the committee markup process. Specifically, I look for what I term “delegation phrases” -- statutory language such as “The Administrator may determine,” “The Secretary may grant an exemption,” and “… if the President shall determine it is in the public interest…”. I argue that such language constitutes a clear grant of authority to members of the executive branch, allowing them to exercise discretion in implementation and policy-making decisions.
My results suggest that when it comes to making legislative decisions about delegation, committee staff size matters. The larger a committee’s staff is relative to the number of members serving on that committee the less likely that committee is to add language during markup that delegates discretion to the executive branch. These well-staffed committees are instead more likely to add language to bills that specifically instruct executive branch actors in implementation. Additionally, in line with much of the existing literature on this subject, I find that committees marking up bills during divided government are more likely to include specific policy instructions to an executive branch led by a president of the opposing party. This is very much in line with the “ally principle,” which states that Congress will delegate to an ideologically-proximate executive branch, but will be reticent to delegate to an ideologically distant one.
The recent back-and-forth between OMB Director Mick Mulvaney and the House Appropriations Committee over the spending bill to fund Congress’ internal affairs has made it clear that the White House would like to reduce spending on staff salaries and other operating expenses. My research indicates that, to the extent we care about congressional capacity to legislate, such proposed changes should be met with concern.
Austin Bussing is a graduate student in Political Science at the University of North Carolina. His research agenda focuses on delegation, congressional capacity, and the separation of powers.