Much as “space junk”—the debris that past space missions have left in earth’s orbit—can disable a current space mission, obsolete statutory commands that Congress has left on the books can keep an administrative agency from accomplishing its current mission. This statutory junk has proliferated in recent decades because Congress has shifted from giving agencies open-ended authority to commanding them in exacting detail, but often fails to revise these commands after changing circumstances have made the old commands perverse. Congress fails because, contrary to the suppositions of some law professors, this delegation allows legislators to shift blame to the agency for harms that statutes do to their constituents. The Chevron doctrine provides agencies some leeway to avoid statutory junk, but is insufficient to cope with the problem, which has grown epidemic. Giving agencies leeway to disobey statutory commands, as some propose, is also not a workable solution. The solution must lie in remedying the root cause of the problem—the legislators’ current ability to avoid blame for the perverse consequences of statutory junk.
EMORY LAW JOURNAL ONLINE, Vol. 66:2023, 2017