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Epstein and O'Halloran: Delegating Powers

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Epstein and O'Halloran. 1999. Delegating Powers.

General Argument

Under unified government, legislatures delegate more to executive agencies; under divided government, legislatures delegate more to independent agencies/commissions (p 154-155, from Volden 2002).

Chapter-by-Chapter Notes

Chapter 5: Data and Postwar Trends


Uses Mayhew's (1991 -- Divided we Govern) list of important legislation in the postwar era (those reported in year end round-ups of both New York Times and Washington Post + those captured by historians and political observers in hindsight)

  • 267 laws from 1947 to 1990 from Mayhew
  • Epstein and O'Halloran add 7 from the 147th congress and take out those involving treaties or constitutional amendments and a few with insufficient CQ summaries. Thus, n = 257.

Dependent Variable

Key Dependent Variable: amount of discretionary authority delegated to executive branch agencies. To do this, they create a "discretion index" composed of two factors:

  • The delegation ratio (r) [number of provisions with executive delegation/total number of provisions]
  • The relative constraints (c) [c = f*r; f= number of restraint categories present / total number of categories]

The authors read and code each of the 257 bills to determine whether they delegated authority (whether to courts, executive branch, local govt, etc). On average, each bill contained 12.8 provisions to delegate authority

  • Bills concerning social security, taxation, minimum wage = less delegation
  • Bills concerning defense, space, health, homelessness = more delegation

The authors are interested in 'who' gets delegated to. This may include

  • Delegation to the president:
    • Executive Office of the President (EOP)
    • Cabinet
  • Delegation to independent actors:
    • Independent Commissions
    • Independent Regulatory Agencies
    • Government Corporations
  • Delegation to others:
    • Judicial Actors
    • State-Level Actors
    • Local Actors

They are also interested in procedural constraints, such as appointment power limits, time limits, spending limits, legislative action required, executive action required, legislative veto, reporting requirements, consultation requirements, public hearings, appeals procedures, rule-making requirements, exemptions, compensation, direct oversight. If delegation involves significant constraints, then Congress is trying to limit its agent's discretion.


The relationship between the delegation ratio and the constraint ratio is positive and significant. The "discretion index" uses these two ratios. Discretion = r-c (delegation minus relative constraints)

  • At low levels of delegation, increasing the number of constraints has little impact on discretion
  • At high levels of delegation, the marginal impact of increasing restraints is much better
  • The number of major provisions (a proxy for government activity) has increased but discretion has decreased
    • Why = increased constraints

Chapter 6: Empirical Findings about Delegation and Congressional-Executive Relations

Does divided government lower executive branch discretion? YES

  • Y: discretion (see chapter 5)
  • Xs: divided government, seat share, gridlock region, start term, activist, budget surplus
  • A move from unified to divided government decreases discretion by 3.2%; Congress delegates less and constrains more.
  • Start term, gridlock have no effect on discretion

Do individual members of congress favor delegation to members of their own party? YES

  • Using roll call votes on major US trade legislation (according to CQ weekly reports):
  • Democrats under unified government more willing to delegate than republicans (but republicans more willing to delegate to republican presidents than democratic presidents)
  • Members support delegation to their own party more than to the other party.
  • Committee members of the same party as the president favor more delegation
  • Senior members favor less delegation

Do vetos or veto threats affect discretion?

  • YES. Less discretion under veto or veto threat

Do legislatures rely on federalism or judicial oversight to avoid delegation problems in times of divided government? SOMEWHAT

  • 3.5% delegation to actors other than the federal bureaucracy under divided government (2.1% under unified)

Do legislatures give power to actors further from direct presidential control under divided government? YES

  • More likely to delegate to independent agencies/commissions and government corporations than to EOP and Cabinet under divided government.