Unfaithful Execution of the Law: Congressional Interference with Agency Decision-Making

44 Pages Posted: 22 Feb 2017

See all articles by William Alan Nelson

William Alan Nelson

George Washington University - Law School

Date Written: February 20, 2017

Abstract

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”

Under the Constitution, Congress has the power to create laws and holds the power of the purse, while the President shall ensure that laws are faithfully executed. This separation of powers is something that American schoolchildren are taught from a young age – Congress passes laws and funds the agencies and departments of the executive branch who implement and enforce those laws. The courts have also illustrated this clear division. However, while this division seems clear cut, Congress has slowly increased its control over the activities of the executive branch through directly influencing administrative proceedings and through the use of substantive policy riders in the appropriations process. In fact, Congress has been attaching policy riders to appropriations bills since the 1870s.

In effect, Congress has unconstitutionally acquired control over the execution of the laws. George Mason, a delegate to the U.S. Constitutional Convention of 1787, warned over two hundred years ago about “the practice of tacking foreign matter to money bills.” This concern is even greater today, with Congress freely adding policy riders to appropriations bills, many of which receive little to no debate or public scrutiny.

The enclosed Article investigates both the legality and utility of Congressional interference in the administrative process. Section II discusses direct Congressional interference in agency decision-making and Section III discusses the use of substantive appropriations riders to effectuate policy change. Section IV argues that substantive limitations placed on administrative agencies in the appropriations process are unconstitutional and Section V discusses how, regardless of the constitutionality, limitation policy riders are not an effective policymaking vehicle. Section VI provides case studies illustrating how current legislation possibly violates multiple clauses of the U.S. Constitution and Section VII offers solutions to address the problems arising from the use of policy riders in the appropriations process.

Suggested Citation

Nelson, William Alan, Unfaithful Execution of the Law: Congressional Interference with Agency Decision-Making (February 20, 2017). Available at SSRN: https://ssrn.com/abstract=2920684 or http://dx.doi.org/10.2139/ssrn.2920684

William Alan Nelson (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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