This piece originally appeared in Just Security.
For more than a century, experts in the federal government have helped protect the nation’s health, consumers’ and workers’ well-being, national security, the environment, and the economy. These specialists in executive branch agencies inform crucial government policies guiding American life. The Supreme Court has long sanctioned expert executive branch agencies’ authority to interpret broad policy goals determined by Congress and ensure that those goals are carried out in light of the best available science and current societal conditions.
While Congress has often given executive agencies some discretion in how they implement its directives, it still has the power and responsibility to exercise oversight to ensure that its intent is carried out. Increasingly, however, its legislative and oversight responsibilities require technical expertise that Congress doesn’t have at its disposal, due to the decline of sources of expert advice throughout the legislative branch. This is already a serious problem, but it could become a crisis if the Supreme Court takes the radical step of eliminating Congress’ ability to delegate virtually any substantive policymaking role to federal agencies, as some justices have suggested they want to do. The time is now for Congress to build out its own expert capacity so that it can oversee — and, if necessary, try to compensate for the loss of — the highly technical expert decisionmaking that executive agencies have long performed.
The Supreme Court
Eighty-five years ago, the Supreme Court invoked a novel theory, the nondelegation doctrine, to strike down parts of President Franklin Roosevelt’s signature New Deal. The Court essentially said that small parts of the National Industrial Recovery Act violated the separation of powers mandated in the Constitution by delegating legislative power to the executive branch.
That was in 1935, and since then, the Supreme Court has not invoked the nondelegation doctrine to strike down other statutes. During this time, executive branch agencies have been pivotal to the development of regulations regarding pillars of day-to-day life, and the Court has developed doctrines requiring deference to their expertise.
In recent years, however, some justices have expressed doubt about not only whether agencies are entitled to deference but also whether Congress can delegate any meaningful policymaking role to them. Justice Brett Kavanaugh recently wrote that the Constitution may bar Congress from directing federal agencies to decide “major” policy questions, an undefined and potentially nearly limitless standard. Dissenting on behalf of two other conservative justices in a 2019 case in which Justice Kavanaugh did not participate, Justice Neil Gorsuch expressed hope that, “[i]n a future case with a full panel,” the Supreme Court would reassess the scope of authority delegated to executive branch agencies to craft regulations.
Were the Supreme Court to take the radical step of significantly limiting — or even eliminating — agencies’ ability to interpret statutes in light of changing public health needs, technological advances, and economic conditions, it would result in a fundamental shift in how our government functions. One potential consequence could be the wholesale invalidation of government regulations that have guaranteed a basic standard of living to the American people since the Progressive Era.
In this new era, Congress might be required to write laws with extremely technical, prescriptive directives, and to update such legislation almost constantly to keep pace with the best available science — all in order to withstand judicial scrutiny. Otherwise, the protections we have long enjoyed would crumble from obsolescence. Even if the Court does not significantly limit executive agencies’ authority, Congress does not have the capacity to lead on technical and scientific matters, whether it is performing legislative or oversight duties.
The Decline of Scientific and Technical Expertise in Congress
In the mid-20th century, Congress passed laws that helped build a deep bench of congressional staff with subject matter expertise about a variety of issues. But in recent years, the number of staff — and staff salaries — have declined throughout the legislative branch, including in lawmakers’ offices and on congressional committees.
The biggest blow was the closure of the Office of Technology Assessment (OTA), a congressional agency created in 1972 with bipartisan support that provided in-depth science advice to Congress. OTA was completely defunded in 1995 (although the statute creating it was not repealed) after the election of the Republican House majority in 1994 on a platform that included limiting federal spending, particularly congressional spending.
During its 23-year existence, OTA had a staff of about 200 people and produced around 750 technological assessment studies, spanning topics related to the environment, national security, health, and more. Although these reports did not contain policy recommendations, they presented in-depth scientific analyses of complex issues that assisted lawmakers in their legislative and oversight functions.
The average OTA report cost $500,000 (about $850,000 in today’s dollars), but guidance from the reports helped inform decisions that saved the government money in the long run. For instance, OTA’s final annual budget was $23 million, yet it saved tens of billions of dollars in taxpayer money with its studies of the Synthetic Fuels Corporation.
The office was at times accused of politicization (for instance when it issued assessments critical of the Reagan administration’s Strategic Defense Initiative — although outside experts confirmed the soundness of OTA’s analysis), but it was generally trusted as a nonpartisan adviser in the legislative process. Supporters included Sens. Orin Hatch (R-Utah), Chuck Grassley (R-Iowa), and Ted Stevens (R-Alaska), in addition to numerous Democratic senators and representatives.
Since OTA’s closure, other congressional agencies — the Congressional Research Service and the Government Accountability Office (GAO) — have taken on some responsibility for providing science advice to Congress. But the agencies have not had the resources necessary for a robust science and technology assessment program.
The lack of unbiased science advice in Congress not only has limited legislators’ ability to make informed decisions about complex issues but also has allowed lobbyists to be dominant sources of science advice. Lobbyists have an incentive to convince lawmakers that the science on a particular issue supports policy decisions that favor their clients’ financial interests, which may come at the expense of the health and safety of vulnerable populations.
Fortunately, bipartisan momentum is growing for Congress to rebuild its science and technology capacity. There are a variety of proposals on the table: refund and modernize OTA, build capacity in GAO, or create a new congressional entity that serves this function.
The Lincoln Network, a right-leaning political group for tech workers, has built a coalition of 40 organizations and many more individuals urging funding for OTA. The Brennan Center’s bipartisan National Task Force on Rule of Law & Democracy recently called for Congress to create a modernized technology assessment entity.
And Harvard’s Belfer Center for Science and International Affairs, R Street, and the National Academy of Public Administration each recently issued recommendations for how to structure congressional agencies to provide unbiased science advice in the legislative branch.
This momentum is translating into action on Capitol Hill. In the spring of 2019, the House Appropriations Committee released a draft of 2020 legislative branch funding that included $6 million to reestablish OTA. It was an important symbol of commitment to rebuilding congressional capacity for science advice.
Last summer, the House’s bipartisan Select Committee on the Modernization of Congress voted unanimously to restore OTA, with plans to reconfigure it. In September, a bipartisan group of lawmakers in both the House and the Senate introduced legislation to improve OTA. In December, the House Science Committee held a hearing about improving science and technology advice in Congress. And the 2020 appropriations law included $40 million for GAO to expand its science and technology capacity.
Regardless of how the Supreme Court proceeds, revitalizing congressional science and technology capacity is important. An unbiased source of scientific and technological advice in Congress, independent of that provided by the executive branch, would assist lawmakers when conducting oversight and making funding decisions about executive branch science and technology programs. It would be a tremendous resource for Congress to make informed policy decisions in response to — and in anticipation of — 21st century technological needs. And it would have a critical democratizing function, reducing the power and influence of special interests in the legislative process and better ensuring that the government serves the public good.