Delegation lets Congress shift blame without sacrificing accountability.

There is a related criticism that broad congressional delegation of lawmaking authority to agencies permits Congress to avoid accountability by shifting blame to agencies if some voters are unhappy.57 Indeed, this Article notes that the ability to shift blame may make it possible for Congress to enact some beneficial reforms that political dynamics would otherwise prevent. Critics argue that the federal government should not be able to wield its power to interfere with economic activity, or with individual liberty, unless a certain number of legislators representing disparate parts of the country can publicly agree that doing so makes sense.58 Exactly how Congress ought to express its policy preferences is potentially a separate question. There are some who argue that having Congress enact more general standards, with the specifics of implementation left to agencies, actually enhances Congress’s accountability.59 Professor Sunstein notes that, as a general matter, “[t]here is no evidence that agencies operating pursuant to open-ended authority do better, on any dimension, than agencies operating pursuant to statutes that sharply limit their discretion; nothing appears to link agency performance with statutory clarity.”60 More specifically, there is no evidence that agencies do better at maximizing social welfare when they are given a very specific statute than when they are given general guidance.61 While there is no shortage of normative arguments for and against broad delegation of authority by Congress to agencies, the point that should be emphasized is that Congress has—in virtually every policy domain other than tax—determined that the balance of the arguments weighs in favor of broad delegation. But not with tax. The modern practice of engaging in broad delegation takes an atypical form in tax legislation, where the IRS is limited it its ability to modify tax rules and not permitted to modify tax rates.62 From a normative standpoint it is not at all clear why tax should be exceptional in this regard. The arguments in favor of delegation in other legal spheres, that Congress has apparently found to be compelling, would seem to apply with equal or greater force to tax law as to other laws.