Legislation, Regulation, and the Courts

Ezra Klein and others point to something interesting. They talk about how the Big Bang Theory of legislation, which I believe is pass the big bill and its over, is not how we do things. Indeed, the legislative process itself, as a procedure dork, is not supposed to end with the passage of major legislation. Rather it is only the beginning.

Indeed, Article I of the Constitution as well as the interpretation of it gives Congress broad oversight powers. There is the inherent contempt power much discussed in the past. However, the reason for all of these oversight powers is to examine what happens once legislation passes as well as looking for new ideas for new major bills.

Furthermore, with our system of separation of powers, there is a dialogue between many branches. Congress passes a law. The Executive Branch, and their agencies create rules and implement the policy. Congress uses appropriations and investigations to turn up the heat if they are unhappy as well as looking at new legislation. Of course INS v. Chadha, 499 U.S. 919 (1989) does limit this matter. Beyond that there is judicial review of statutes and executive action. See, e.g., Chevron v. NRDC, 467 U.S. (1984). So we create a dialogue. Finally, many statutes have reauthorization requirements. Often programs will continue beyond that, particularly if they are not direct spending programs (i.e. Medicare). In the ideal though, it allows for retooling of these ideas (for better or for worse, See e.g. No Child Left Behind Act, Pub. L. 107-110 (reauthorizing and making major changes to the Elementary and Secondary Education Act of 1965, Pub. L. 89-10).

The theory thus is an old one in the rarefied academy of Administrative Law, Constitutional Law, and Political Science. It is also well known amongst procedure dorks. However, it is wonderful to see others, less weird than me, popularizing it.