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Gridlock government defined11/21/2023 ![]() Perhaps the reinterpretation of old laws to address new purposes is a way of avoiding democratic deficits rather than a source of democratic deficit. ![]() ![]() Jefferson’s argument, although ably rebutted by Madison in response, suggests a different way of looking at the problem that Adler and Walker raise. The problem Adler and Walker seek to address resembles the problem Thomas Jefferson and James Madison confronted in their famous exchange about, in Jefferson’s words, “whether one generation of men has the right to bind another.” Jefferson famously proclaimed that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.” For Jefferson, “no society can make a perpetual constitution, or even a perpetual law.” The implication, he concluded, was to make sure all laws and constitutions could expire every 19 years. The ideal way to make policy in a representative republic would be to enact new legislation, or amend existing legislation, to address new problems, thereby ensuring that the laws reflect the consent of the currently governed rather than the previously governed. Theoretically, this raises a democratic deficit problem-in their words-because it uses the work of a previously existing coalition of voters and representatives to accomplish policies that may not have been supported, or even contemplated, when they enacted the law. But where Adler and Walker see democratic deficits, I see the possibility that law and policy can evolve to reflect the preferences of those who are currently governed.Īdler and Walker’s article focuses on an important theoretical question: the democratic implications of exploiting the ambiguity of old laws to address new circumstances. Statutes written generations ago are used for purposes that their enactors, and the constituents they represented, never envisioned when they enacted them. In addressing this phenomenon in their article, “ Delegation and Time,” Jonathan Adler and Christopher Walker highlight important concerns about the democratic deficits in the administrative state. In both cases, and in several others, agencies have relied upon existing grants of authority from previous Congresses rather than implementing the will of the current one. In addition, the Federal Communications Commission shoehorned its “open internet” order into a statutory scheme that has not been revised since 1996. Environmental Protection Agency, for example, has reinterpreted the Clean Air Act as authorizing regulations to limit greenhouse gas emissions, despite the law’s focus on localized air pollution. In response to a number of recent high-profile policy questions, administrative agencies have discovered new applications for statutes that were not envisioned by the legislators who wrote them.
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