/>iPonder the following existential question: Who does their job less effectively? Members of Congress, or employees of federal agencies? Let’s examine the U.S. Environmental Protection Agency (EPA) employees versus those responsible for legislating environmental laws.
Congress has not been able to reauthorize environmental statutes for years, with some (most) needing significant attention. EPA relies on 1990 Clean Air Act amendments to sort out air pollution issues and address climate change when in 1990 the debate focused especially on acid rain and emissions from autos with the latest in 1980s technology. Water pollution? Let’s continue to rely on foundational approaches based on the Rivers and Harbors Act of 1899!
Even trying to avoid snarky arrogance and intellectual ridicule from a former federal employee, the basic point remains — many of the “problems” often cited by critics of Agency behavior can be traced back to the fact that demands to fix current problems are being made of a program that does not quite fit the text of the authorizing statute. To address action demanded by state and federal legislative members the bureaucracy has to rely on fitting the law they implement to often unforeseen problems that they now confront.
Many observers fear the fallout of the demise of the Chevron doctrine — concern that, without deference to Agency interpretations, important problems may remain unaddressed (or worse, for some, resolution may fall to federal judges). But consistent with the court opinion, interpretations of legislative text is the domain of judges or, heaven forfend, the responsibility of Congress to define or refine clearly the extent and intent of the legislation.
The current lamentable (to some) result to fill effectively the legislative effort can be called “rubber-suiting” — stretching the colorable authority already granted to address a new problem not originally anticipated by the legislative authors. An example in the environmental space is the EPA authority to regulate biotechnology products: the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) can reach (stretch) to cover most of the waterfront about regulatory issues identified needing regulation.
Over the past decades, Congress and different administrations have made intermittent attempts to craft a new, broad, and modern statute to coordinate and regulate government review and approval of biotechnology products. The current government allocation of responsibilities across agencies, reliant on authority legislated mostly long before biotechnology products were developed, is governed by policies first crafted during the Reagan and H.W. Bush Administrations.
Jurisdiction remains fragmented, relying on statutes drafted before modern methods of biotech engineering were even developed, and holes in the rubber-suit remain. Example of a hole? An earnest high school student can purchase an “at-home Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR) device” and experiment with doctoring DNA in their own home, out of sight or knowledge of regulatory officials. For $129.00 on Amazon.com, you can buy a “DIY Bacterial Genome Engineering CRISPR Kit.” We hope the result is not a literal version of “Audrey II” from Little Shop of Horrors.
In addition to the jurisdictional difficulties and holes, especially acute in the last decade or three, is the bitter partisanship besetting congressional deliberation. There are continued calls for “regular order,” but apparently little appetite for the same. “Regular order” would see legislation introduced, deliberated by the assigned subcommittee(s) and committee(s), moving to floor consideration in each chamber, and differences between House and Senate resolved by a conference committee. Such a schematic is about as currently relevant as having new members watch Jimmy Stewart’s Mr. Smith Goes to Washington as part of orientation. (That is the last film reference used today.)
An important book that has become required reading in introductory political science coursework is in its fifth edition: Politics, Position, and Power: The Dynamics of Federal Organization, by Harold Seidman. Its main message? To reorganize the federal government, you need to reorganize the Congress. A famous example of the problem, cited by many: A cheese pizza is subject to regulations developed by one agency (the U.S. Food and Drug Administration (FDA)), while a pepperoni pizza is subject to regulations from an entirely different agency (the U.S. Department of Agriculture (USDA)). Explanations of this curiosity include jurisdictional rivalries among congressional committees and federal agencies. Calls for a single food-safety agency have seen legislation introduced for years and have been the subject of many General Accountability Office (GAO) reports.
More Americans have lived in urban areas than rural areas since the 1910 Census, and according to USDA, agriculture represents roughly 2.6 million Americans who were directly employed on farms, equaling about 1.2 percent of total U.S. employment. At the same time, one of the relatively few committees in Congress is specifically focused on Agriculture. Indeed, the country’s food production is important, and if you count all jobs related to food, the percentage jumps to be over 10 percent. Congress might benefit from a reorganization itself, since the urban population has outnumbered rural residents for over 100 years, but rural states would likely take offense at any attempt to de-emphasize the critical importance of the agricultural sector in our modern economy.
Our April 2, 2025, blog post discussed how the call to reorganize EPA has been a long-standing idea to “reform” the agency to better achieve its mission. Likewise, the point here is to suggest that Congress might benefit from a version of “doctor, heal thyself” should any serious attempt be made to make government work better, be more efficient, and give more meaning to the phrase “your tax dollars at work.”
