Delegation makes implementation faster.

Inherent differences between the process of issuing regulations and the process of passing statutes provides another common justification for broad congressional delegations of lawmaking power.33 Even when the legislative process is working well, it may take longer for Congress to pass a law than it takes an agency to make a rule. As a result, agencies can react more quickly to new information than Congress can, including recent scientific findings and changed circumstances. In addition, the nature of the legislative process inhibits action.34 This can be true, for example, when there is consensus that some action should be taken with respect to a particular problem, but there is deep division—say, between Republicans and Democrats, or within either party—on what precisely, if anything, should be done. In such a case, a broad and somewhat vague delegation of authority by Congress can permit legislators to take credit for successful policies, while reserving the ability to duck responsibility for the final outcome.35 One real-world example of this phenomenon, already mentioned, was the closing of military bases in the late 1980s and early 1990s.36 Observers agreed at the time that the rapid decline of the Soviet military threat necessitated a radical reduction of the size of the U.S. military.37 Moreover, there was a consensus specifically that the number of military bases was untenable.38 The difficulty, however, was that any member of Congress who voted for a measure that closed a base in his or her own jurisdiction risked political suicide. This presented a major collective action problem: a change that clearly enhanced welfare, and that needed to be made, could not be directly enacted given individual lawmakers’ incentives. Congress could, however, vote to solve the problem indirectly, and it did. In 1988 Congress passed the Base Closure and Realignment Act, which created an independent commission with legal authority to determine which bases to close, subject to Congress’s right to overturn the proposal through a joint resolution.39 Under the Act, the head of each military service first submitted a list of recommended base closures to the Secretary of Defense, who could add to or subtract from that list.40 The secretary then submitted the revised list to the commission, which in turn had the power to add or subtract bases.41 At that point, the final list of recommended base closures went to the President, who could either approve the list (with no changes) or veto it, starting the whole process over.42 If the President approved the list, the Secretary of Defense then had the authority to begin implementing the closures on the list, unless Congress halted the process within forty-five days of presidential approval by issuing a joint resolution.43 Congress has adopted similar mechanisms in other areas. The ACA, for example, delegates enormous Medicare cost-cutting authority to the Secretary of Health and Human Services and the newly created IPAB.44 Under the ACA, the IPAB, consisting of fifteen experts named by the President and confirmed by the Senate, has the authority to recommend policy changes to Congress to cut Medicare costs. These recommendations can include “ideas on coordinating care, getting rid of waste in the system, incentivizing best practices, and prioritizing primary care.”45 What is interesting about these recommendations is the way in which they create legislative pressure to cut Medicare costs. First, Congress can accept IPAB’s recommendations and enact them into law. Or, alternatively, “[i]f Congress rejects the recommendations, and Medicare spending exceeds specific targets, Congress must either enact policies that achieve equivalent savings or let the Secretary of Health and Human Services follow IPAB’s recommendations.”46 The parallels between this delegation and the base-closure delegation are obvious. At the most general level, Congress created the IPAB to address the need to cut healthcare costs, a need that virtually everyone agrees is essential to the long-term fiscal well-being of the country; likewise, Congress created the base closure commission to address the need to cut military expenditures, about which, again, there was general agreement.47 Moreover, the collective action problem that inhibited Congress from making military spending cuts through the normal legislative process (no legislator wanting to vote for a law that kills a military base in his or her state) has analogs in the healthcare context. For example, although it was universally agreed that cutting Medicare costs would enhance overall public welfare, individual legislators resisted competitive bidding that could undermine their ability to secure contracts for medical device manufacturers or pharmaceutical companies in their own districts.48