Legislative choice of regulatory forms: Legal process or administrative process?

Abstract

A paper like this does not lend itself to conclusions. The unifying theme of the paper is a question: when and why does Congress choose to modify social and/or economic behavior by establishing a regulatory agency rather than by writing a law to be enforced in the courts? This is a special case of the more general question of why politicians delegate their power to administrators. I have not sought to answer that question in any definite way; rather, I have tried to identify some of the potential answers, most of which are mutually compatible, all of which have some support in the literature, and few of which have been dealt with systematically by modern political economists. I have ignored certain answers that appear in the literature — the complexity of modern problems, the demands on legislator time, and so forth. These may have some effect on what Congress decides to delegate, but in the main I believe they are largely rationalizations which scholars are too quick to believe. Where politicians have the incentive, they manage to deal with complexity, and they find the time to do it. It is our job to identify those incentives and trace their implications for the formation of public policy in this country. Without denigrating the work that has been done, it is fair to say that our work is only beginning, despite the extravagant claims of some authors to the contrary.