In deciding to preserve its “non-delegation” doctrine last week in the Gundy case, the Supreme Court seemingly avoided a serious disruption in government operations. But the Court’s adherence to that doctrine rests on myth more than reality.

For more than 80 years, the Court has refrained from imposing meaningful limits on the freedom of Congress to delegate its lawmaking authority to the executive branch. As the Court has observed, “in our increasingly complex society, . . Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

And with the Court’s approval, Congress has delegated vast amounts of lawmaking power to the executive branch. Thus, for example, our environmental regulations come out of the Environmental Protection Agency (EPA) rather than from Capitol Hill.

But the Court is wrong to think that the government could not operate without all of that delegation. Congressional delegation of lawmaking power to the executive branch reflects abdication rather than necessity. Legislators are happy to take credit for addressing a problem on a general level and then letting the executive branch take the heat when it comes to filling in the details. But Congress writes specific laws when it wants to, as with revisions to the tax code.

And even when it can’t decide all of the details, Congress could keep the writing in the legislative branch. Instead of creating regulation-writing agencies like the EPA as part of the executive branch, Congress could have created expert agencies as part of the legislative branch, as it did with the General Accountability Office (GAO). The agencies could still write regulations in the same way they do now. The only difference would be that Congress would have to formally adopt the regulations and send them to the President for approval.

To be sure, the need for congressional and presidential approval would make it more difficult to adopt regulations, but it also would make it harder for a new President to reverse existing regulations. In addition, we can’t expect Congress to fulfill its constitutional responsibilities if it’s allowed to evade them.

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