Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?

June 18, 2019 at 12:00 PM EDT

National Press Club, First Amendment Room
529 14th Street, NW
Washington, DC 20045

On June 18, 2019, the Federalist Society’s Article I Initiative and Regulatory Transparency Project hosted a panel on “Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?” at the National Press Club in Washington, DC.

In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” published in the Texas A&M Law Review, Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. Those ostensibly elected to oppose further regulation can argue that any proposed rule changes are out of their control. Conversely, representatives elected to increase regulation can blame agency heads for not following the intent of the authorizing statute. However, both sides avoid blame by the electorate.

What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?

 

As always, the Federalist Society takes no position or particular legal or public policy issues. All opinions expressed are those of the speakers.

Brianne Gorod

Chief Counsel

Constitutional Accountability Center


Andrew Grossman

Partner

Baker & Hostetler LLP


Donald Kochan

Parker S. Kennedy Professor in Law and the Associate Dean for Research & Faculty Development

Chapman University Dale E. Fowler School of Law


Robert Percival

Professor of Law and Director, Environmental Law Program

University of Maryland School of Law


Jeffrey Holmstead

Partner

Bracewell LLP


Article I Initiative