To address government dysfunction, Congress must reclaim its oversight responsibilities

January 28, 2019 | By ANASTASIA BODEN

Originally published by The Hill, January 28, 2019.

On Friday afternoon, President Trump and Congress moved to reopen the government for three weeks following a shutdown of historic length. The president encouraged a committee of senators and House representatives to negotiate his request for $5.7 billion in border wall funding in the Homeland Security Appropriations bill. The paralysis that led to the government shutdown resulted from Congress failing to use the process as designed to work out policy issues. This committee of last resort is not how Congress is meant to operate.

To prevent a repeat of the government’s paralyzing dysfunction on future appropriations bills, Congress should begin by reclaiming its oversight and legislative responsibilities over the executive branch. That necessarily includes fixing the agency authorization process.

Most government programs for which Congress appropriates money first must be approved by Congress in a separate piece of legislation known as an “authorizing bill.” Authorizing bills describe the direction a program should take and create the legal authority for the program to operate.

Creating a program is a two-step process: Congress creates the legal authority for that program in one bill, and then funds the program in a separate appropriations bill.

Many programs have sunset provisions that require Congress to reauthorize the program every few years. This allows Congress to regularly evaluate whether a program should be modernized, eliminated or allowed to continue unchanged. In Washington jargon, this is often referred to as “congressional oversight.”

However, Congress has turned a blind eye to its oversight responsibilities, allowing many authorizations to lapse. As a result, bureaucratic programs grow unchecked and accountability suffers.

For fiscal year 2018, the most recent year for which data are available, the nonpartisan Congressional Budget Office found 410 expired authorizations that continued to receive appropriations.

This is not a new problem. Congress has failed to re-authorize many major agencies and programs for decades while continuing to fund them. For example, the Federal Election Commission (FEC) last was authorized in 1981. Similarly, the Federal Trade Commission’s (FTC) most recent authorization was in 1998. The Federal Emergency Management Agency (FEMA) has not been reauthorized since 2010.

When Congress fails in its funding responsibilities, as in today’s shutdown, the consequences are evident and stark. It’s national news when important federal agencies shut their doors and federal employees go without paychecks.

But when Congress fails in its other major responsibility of oversight, the consequences are subtle and less dramatic. The problem is compounded by broad grants of power in organic statutes that allow executive agencies to issue rules of increasing length and detail. A lack of congressional oversight and reauthorization debates allow federal bureaucracies to write our laws instead of our democratically elected representatives. This creates a government that grows less and less accountable to Congress and the taxpayers. Unfortunately, bureaucracy run amok is not breaking news and rarely grabs headlines.

And to make matters worse, the Chevron Doctrine, which takes its name from a 1984 Supreme Court decision, requires courts to defer to a federal agency’s interpretation of its regulatory power in cases where the law is ambiguous, explicitly or implicitly, and the agency’s interpretation is not “unreasonable.” Where Congress disagrees with an agency’s actions or interpretations, legislators have the power to change the law and redirect the agency. That is supposed to happen, however, through the defunct reauthorization process.

When the courts defer to agencies and Congress refuses to engage in a meaningful reauthorization process, the only release valve for unpopular executive agency action is appropriations legislation. Without the reauthorization process, a lawmaker’s best avenue to address an agency’s missteps is to target the agency’s funding in an appropriations bill. This raises the stakes for appropriations bills unnecessarily.

After the current budget process was established in 1974, Congress has completed all appropriations bills on time on only four occasions (1977, 1985, 1989 and 1997), according to a 2018 study by Pew Research Center. Whether or not the lack of reauthorization is a direct cause of the failed appropriations process, Congress should seek to minimize stressors on funding negotiations rather than add difficulty to an already fragile process. The system is designed for legislators to work out some of their policy disagreements before making funding decisions.

The 116th Congress should take the current shutdown as an opportunity to reevaluate a few programs. Walking through a few reauthorizing bills before trying to deal with the controversial issues surrounding the shutdown would be a bit like learning to walk before trying to run. But if nothing else, it would be a step in the right direction toward reasserting real congressional oversight of the executive branch.

Clint Brown is legal policy director for Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.