Delegation is inevitable, desirable, and the plan fails without it.

One of the most remarked-on developments in American law, ever, is the rise of the regulatory state.21 For many commentators, the delegation of broad lawmaking authority and the increased role of regulatory agencies were both inevitable and desirable developments given the increasing complexity of modern economies.22 One of the traditional rationales for broad delegation is relative expertise, meaning that regulatory agencies have greater knowledge and focus in particular areas and specific issues than Congress does—or realistically can.23 An extreme example is the National Science Foundation, to which Congress delegates the task of selecting which researchers will receive federal grants to do basic research.24 The NSF, staffed and assisted by preeminent experts in many fields of scientific inquiry,25 has greater knowledge about which scientific projects are likely to yield important results than any congressional committee or committee staff could realistically acquire. Furthermore, the highly effective peer-review process used by the NSF to judge grant applications would be difficult politically for Congress to use.26 Thus Congress’s role is limited primarily to setting funding levels and articulating the most general policy agenda,27 leaving the discretion to determine which projects get funded to NSF experts.28 The same delegate-to-the-experts principle applies on a grander scale to any major regulatory legislation, such as the Food and Drug Act29 or the Clean Air Act.30 Although members of Congress and congressional staff can become relatively well versed in general policy goals, the details of implementation simply have to be delegated. Of course, individual legislators and their staffs are capable of developing important expertise on any number of policy questions. But it is unrealistic to expect legislators to maintain detailed knowledge of how to best implement policy in the whole range of areas affected by federal law. In theory, Congress could create a committee for every major policy issue, staffed with experts who would spend of all their waking hours working out detailed legislative solutions to every regulatory issue. In such a world, the committees would fill in details rather than the agencies. But that division of labor is generally considered inefficient in every policymaking area other than tax. However capable their staffs, members of Congress would be inappropriate and overtaxed supervisors if they needed to work through all of the issues apt to arise. To the contrary, the more efficient place to insert such detailed, specialized, and constantly updated expertise in the lawmaking process is with an agency postenactment. The congressional staff that drafted the broad delegations in the Clean Air Act,31 for example, probably knew at the time of enactment a great deal about the need to regulate air quality generally and the hazards of pollution to human well-being and the environment. But they would not have been expected to keep up to date on all of the subsequent scientific advances and accumulating knowledge concerning pollutants that threaten public health and what should be done about them. That is why the statute, for example, empowers the EPA to determine which pollutants might “reasonably be anticipated to endanger public health or welfare” in the motor vehicle context.32 Of course, no one really disagrees that Congress needs to delegate the detail work. The harder question is whether Congress should delegate the more substantive policy choices, and this Article argues that perhaps it should—or that the case for delegating choices is as strong with tax as elsewhere.