Artificial intelligence could make lawmaking better
As any high school civics teacher tries to impress upon distracted teenagers, the federal and state legislative branches pass laws, and the executive branch is responsible for carrying them out. But to facilitate the implementation of laws, administrative rules are created to provide guidance related to the law after it is codified. In Nebraska, the state constitution clearly states:
The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.” NEB. CONST. art. II, § 1.
The open secret is that Congress and state legislatures often delegate significant decision-making power to agencies, effectively granting them the authority to make laws while avoiding getting entangled in the intricate details of drafting proposed legislation.
Politically, this current approach makes sense. By keeping the details of a law vague, lawmakers can garner broader support and reduce the chances of the law being challenged on technical grounds, especially when there are heightened divisions or emotional reactions surrounding a particular legislative agenda. The vagueness also keeps stakeholders from suing to modify the law once enacted because of the specific constitutional requirements to have standing found in Article 3 of the constitution.
The Chevron Doctrine, which defends agency interpretations of ambiguous statutes, provides a further buffer for legislators against potential backlash resulting from poorly drafted laws. Chevron, U.S.A. v. NRDC, Inc., 467 U.S. 837. It allows lawmakers to pass vague legislation while leaving the details to be filled in by agencies, shielding the lawmakers from direct accountability for any negative consequences. While the Chevron doctrine was watered down in West Virginia v. EPA, 597 U.S. ___ (2022), and may be entirely nullified in Loper Bright Enterprises, shifting accountability will always be in vogue in politics.
Many states have their own version of the Chevron Doctrine, which defends agency interpretations of ambiguous statutes from blowback and challenge. Like at the federal level, these state-level doctrines buffer legislators against potential backlash from poorly drafted laws. Nebraska’s Chevron-esq doctrine was first found in Wilken. Department of Banking, Receiver v. Wilken, 217 Neb. 796 (Neb. 1984) but subsequently watered down in Slack Nsg. Home v. Department of Soc. Servs, 247 Neb. 452 (Neb. 1995).
But the incentive to deflect responsibility for self-preservation is only a minor part of the story. Good people like Mr. Smith go to Washington to help their constituents back home, but the administrative agencies have the resources to draft complex laws. This was not always the case. According to one Congressional Research Report, “Since 2009, however, the number of staff working in the House has decreased by 14.00%.” Many state legislatures are run by citizens who still work and have families. At both levels, fatigue from the role’s demands is evident.
In turn, the regulations, as quasi-laws created by the state and federal executive branches, confuse rather than provide clarity because the foundational statute is itself vague. Vague final rules exist only after waiting for interim regulations, public comments, responses to public comments, and final rules, all of which may contradict each other. The Administrative Procedure Act (APA) does not limit how long regulations should be finalized and published. Many states mirror the federal APA Procedure Act either fully or partially.
The Jack in the Box waiting game for state and national regulations hurts the economy. Businesses and individuals depend on a steady legal environment to build future plans.
So do our most venerable. The ABLE Act regulations, which aimed to provide financial independence and support for individuals with disabilities through special savings accounts, took a staggering five years to be finalized. This prolonged delay had a detrimental impact on people relying on means-based welfare programs because no one had a clear picture of what the money in the account could be spent on. The delay in finalizing the ABLE Act regulations undermined the legislation’s original purpose and highlighted the need for Congress and state legislatures to reclaim their authority.
Using AI in lawmaking may put the power back to legislators while shortening the time regulation takes to be finalized. Artificial intelligence is a computer program or system that can analyze large data sets to predict outcomes or mimic human-like tasks using logic.
Last month, the Congressional Hackathon took place, where many of these issues were discussed and how AI could solve them. Dylan Irlbeck, a congressional innovation fellow working with the Senate Finance Committee, suggested that AI can create bill summaries for Congress.gov. Multiple state legislatures are already considering what AI tools they want to implement.
Going a step further, using AI to assist in drafting potential bills may be one of the few governance decisions that is not a zero-sum game while gaining back their enshrined powers. Congress and state legislatures can write and pass laws specific enough to give the administrative agencies guidance while still enjoying broad support in a fraction of the time it would take to have a staffer draft it. Agencies would be faster at making regulations without trying to guess the law’s intent. Most importantly, the public could know how to plan without regulations since the law is straightforward.
This new paradigm will have push-back as long as the status quo defense entrenched the incentive to deflect to the executive branches. The Platte Institute is working with the unicameral to fix this by seeking to maximize individual freedom in the administrative process by passing LB43 in the next session. The future of lawmaking is here, and it’s time to harness the potential of AI to shape a better legal landscape for all, starting with LB43.