Regulatory Discretion: Both Good and Bad

From p. 137 of Cornell political scientist Theodore Lowi’s 1969 book The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority:

The move from concreteness to abstractness in the definition of public policy was probably the most important single change in the entire history of public control in the United States.

Lowi’s point concerns the separation of powers. In theory, Congress passes a law directing a regulatory agency to regulate something in a specific way, then the agency does so. The executive branch executes legislation; hence its name.

This is not how things work in practice. More and more, Congress delegates its legislative powers away to the executive branch. On issues ranging from health insurance subsidies to power plants to Internet infrastructure, executive branch agencies act unilaterally. And when they cite congressional statutes, they do so abstractly, not concretely, just as Lowi said nearly 50 years ago.

An example: the text of the Clean Air Act says nothing about CO2 emissions. But a few years ago, the EPA issued a cap-and-trade regulation for CO2 emissions, even though Congress explicitly rejected a bill to do so. The EPA justified its decision on the abstract principles on which the Clean Air Act is based. The fact that the text of bill, as amended over the years, does not mention CO2 emissions as a pollutant, did not matter to the EPA.

There is a role for discretion in regulatory matters. Discretion makes it possible to avoid regulatory abuses, clear needless bureaucratic hurdles, and avoid obvious stupidities such as suspending children from school for wielding Pop-Tart “guns” in cafeterias.

But Lowi makes a good point: discretion is a double-edged sword. Without a clear separation of powers, its outer edge can spill blood by executive order just as easily as the inner edge can cut innocents loose from government-mandated ropes.

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