Multiple factors check legitimacy and accountability.

The arguments against broad delegation of powers are also well known, concentrating largely on issues of legitimacy and accountability.49 Granting agencies broad authority raises the possibility that they will enact regulations inconsistent with congressional intent. Furthermore, even if the regulations adopted by an agency reflect what Congress intended, the mere procedural fact that an agency rather than Congress is directly responsible for the final product may worsen the public perception of its legitimacy.50 An elected Congress is endowed with the power and responsibility to make national laws, and answers to voters if it performs poorly in doing so.51 Congress generally holds open hearings and votes, permitting voters to understand their representatives’ contributions to legislative outcomes, and to a certain degree, why legislators voted the way they did. It may be more difficult for voters to hold Congress accountable for the actions of an agency, even if Congress created the agency while fully anticipating its future behavior.52 As a result, delegation arguably reduces the democratic nature of the system, undermining the legitimacy of its actions. These are valid concerns, although they have often been overstated by the leading critics of broad delegation to agencies.53 First, if an agency acts in a way that substantially diverges from the wishes of the legislature, Congress can pass another statute to restrict or remove the agency’s authority. Numerous examples from the era of deregulation support this claim. To take one famous example, when Congress determined that the regulation of the airline industry was not working well, thereby producing excessively high fares, overcapacity, and inefficient nonprice competition (among other problems) it responded with a statute that “deregulated” the industry and abolished the Civil Aeronautics Board, the agency that was responsible for price and quantity regulation.54 Similar stories can be told about deregulation of other industries, including telecommunications, energy, and finance. Whether these deregulatory efforts have, in retrospect, been net benefits to society is often debated. But that is beside the current point, which is this: when Congress decides that an agency has gone too far, Congress is capable of reining that agency in, one way or another. This is not a complete response, of course, since one of the reasons for delegation is the inability of Congress to act, and the political coalition that passed the delegating statute in the first place may be difficult or impossible to put together to pass constraining or clarifying legislation. This is especially a concern in a world of congressional gridlock, marked by record-low enactment of laws.55 Nevertheless, Congress’s power to pass new laws does serve as a constraint on agency discretion, at least in cases involving obvious agency overreach. Second, public opinion can be channeled to affect agency action. In the case of executive agencies, the President’s policy preferences also constrain agency discretion, and the electorate in turn renders judgment over the President’s management of the executive branch. Indeed, some argue that being accountable to the President, who is more attuned to the preferences of the majority of national voters than is any member of Congress, is more democratic than being accountable to Congress.56 In addition, the notice and comment process that agencies use in crafting regulations and that partly justifies their authority allows interested parties to draw public and congressional attention to instances of potential regulatory overreach. Media coverage also ensures accountability for high-profile issues. If an agency does something egregiously bad, voters find out, and Congress can be animated to act. Third, judicial review constrains agency discretion. Courts are often called on to determine whether an agency has exceeded its legislative authority. Even if Congress were to convey broadly worded authority to an agency, the application of that authority in particular situations can be challenged in court by the affected parties. Finally, there are agency norms that significantly influence the actions of professional staff and even political appointees. Regulatory agencies are staffed by professionals whose reputations and long-run effectiveness depend on high levels of competence, as well as a certain degree of political independence.