Nondelegation Doctrine

 Volkh Conspiracy has a guest poster writing on the "nondelegation doctrine", the idea that Congress should grant power to the executive only with strict guidelines.

For anyone interested but too lazy to go to the Reason magaizine, here's my comment:

1. “Major policy decisions”? Do we know what that means? There’s a standard of economic impact of $100 million for regulations–but that’s been unchanged since it was first adopted in the 1970s in relation to inflation concerns, not policy.

   Arguable the USDA/Trump decision to spend billions from the Commodity Credit Corporation was a major policy decision. But it wasn’t particularly controversial, because it was too esoteric and there were no significant opposing voices to make a fuss. https://www.forbes.com/sites/stuartanderson/2020/01/21/trump-tariff-aid-to-farmers-cost-more-than-us-nuclear-forces/?sh=4fe7a4966c50

   I suspect the operational definition is an issue about which there’s a big fight between the parties and/or interest groups. I think the reality is such issues don’t get resolved in legislation, just kicked down the road to the faceless bureaucrats who can be blamed if they screw up and/or offend people.

   Reply 

Buck Stops With Biden

I remember Harry S, and his buck stops.  I think that is right.  I don't know that Biden did anything which led to today in Kabul, but it's his responsibility. Presidents can take credit for things which happen during their term, even though they didn't cause them; so too should we hold them responsible for the bad things which happen.  

In my mind this parallels Obama and the healthcare.gov problems.  In both cases the leader may have done all the usual "due diligence", but in both cases there was* no appreciation for Murphy's law, for the black swan event.  And in both cases the bad happened, and it was bad.   

In an ideal world the leader would do a stress test on his bureaucracy, worrying about contingency plans.  You recall Eisenhower had at least a contingency message prepared in case D-Day was a fiasco and the troops had to be evacuated.  

* I write this knowing there's been no real reporting on the decision process in either case, at least no tick-tock book which I've read.

I'd also note that Trump's agreement with the Taliban put Biden in a tough position. My knee-jerk reaction is that he perhaps should have kept the troops and support going until the last minute while paring down the civilian contingent and especially getting all the interpreters and otherwise vulnerable people on the way  out of the country. 

The Problems With Executive Action

 Dylan Mathews has a post at Vox: "10 enormously consequential things Biden can do without the Senate".

He writes: "Pushing the limits of executive authority is sure to provoke legal challenges that the Biden administration could lose, especially with a 6-3 Republican Supreme Court. But even if only half of the options below are implemented and affirmed by the courts, the practical effects would still be hugely significant."

I guess my conservative side is showing.  I know the frustrations of facing a deadlocked Congress, a body which cannot decide what laws to pass. But there are problems in going down this road. 

• successful executive actions can be reversed when a new Republican president comes into office.  We can't assume that Democrats will always control the executive, or that the Republicans will come to accede to Dem actions.   Reversals can mean a frustrated and ineffective bureaucracy: one which will know their work is temporary and built on shifting sands.
• using the executive actions increases the power of SCOTUS, meaning it will become more political and fights over filling vacancies even more heated.

I prefer the longer range option of building support in the country which results in electing majorities in Congress which can pass permanent legislation.  That strategy is the one which Dems used for Obamacare.  In the end, it's better to piecemeal our way to permanent reforms than to become wedded to visions of perfect solutions for which the clock will strike midnight.