53. Laurence Tai, Delegation to Administrative Agencies Without Expertise and with Third-Party Information, 09/2013.
Abstract: For decades, congressional delegation to administrative agencies has been justified at least in part by the fact that they and their employees are repositories of expertise. However, agencies may not fundamentally be able to generate or process information better than Congress, and they frequently depend on information from third parties outside the government, particularly regulated entities. When agencies can make decisions based on superior information, it is often for a different reason: with distinct preferences from both legislators and industrial interests, they can obtain higher quality information from the latter. A skeptical agency can induce more effort in firms’ information gathering, while a moderate agency can elicit more reliable communication in their information transmission. After explaining these strategic dynamics, this paper explores the reverse of the standard agency control problem: instead of how to constrain agencies with expertise to act as Congress would given their information, it considers how to make agencies act differently from how Congress would toward regulated parties so that agencies can obtain better information for policymaking.