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105 Iowa L. Rev. Online 1 (2020-2021)

handle is hein.journals/iowalrb11 and id is 1 raw text is: Delegation, Time, and Congressional
Capacity: A Response to Adler and Walker
Richard J. Pierce, Jr.*
I.    REASONS W HY CONGRESS DELEGATES BROAD POWER .....................................3
II.   THE MODERN CONGRESS HAS NO CAPACITY TO LEGISLATE .............................6
III.  WHAT CAN COURTS DO TO ADDRESS THE PROBLEM?................................ 12
In Delegation and Time,1 Jonathan Adler and Chris Walker do an excellent
job of introducing us to an important new way of thinking about broad
congressional delegations of power. After reviewing the traditional arguments
against broad congressional delegations of power rooted in concerns about
lack of political accountability they note that broad delegations increasingly
raise a serious temporal problem.2
In their words, broad congressional delegations of authority at one time
period become a source of authority for agencies to take action at a later time
that was wholly unanticipated by the enacting Congress or could no longer
receive legislative support.3 They also note that this temporal problem has
taken on added significance in the current era of congressional inaction.4 Adler
and Walker illustrate this temporal problem well by referring to the efforts of
the Federal Communications Commission to use the Communications Act of
1934 to regulate the internet and the efforts of the Environmental Protection
Administration to use the Clean Air Act of 1972 to mitigate climate change.5
Neither statute was enacted with those applications in mind and neither is well
suited to the task.6
I agree completely with the concerns that Adler and Walker express. I
would expand them to include broad congressional delegations of power to the
president that are being applied in ways that Congress never contemplated and
would not support today. President Trump's use of the broad authority granted
*  Lyle T.Alverson Professor of Law at George Washington University.
1. Jonathan H. Adler & Christopher J. Walker, Delegation and Time, 105 IOWA L REV. 1931 (2020).
2.  Id. at 1936-37.
3.  Id. at 1931.
4.  Id.
5. Id. at 1941-45.
6.  See id.

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