The Turn Toward Congress in Administrative Law

Abstract

Congress engages in an extensive and ever-increasing level of oversight of the activities of the Executive Branch. The level of observation and supervision is high enough that it is appropriate to hold Congress responsible for a very high proportion of the activities of the Executive Branch. In recent years, so much attention has been paid to assertions of power by the President and the Supreme Court, Congress has been somewhat neglected. This paper analyzes the power of Congress mainly through an administrative law lens with the aim of pointing out ways in which Congress has remained or become responsible for administrative law. Congress has become more responsible in recent years, not because of any improvements or reforms it has undertaken, but rather because developments in administrative law have placed responsibility on Congress. Some of the most important developments in administrative law in recent years can be traced to reinforcement, by federal courts reviewing administrative action, of Congress's primacy as the most powerful policymaking branch of the federal government. I do not mean to argue that the law has consistently moved in the direction of congressional primacy. By and large, the Supreme Court has promoted its own agenda to the exclusion of deference to anyone else, including Congress, the Executive Branch and all branches of state governments. However, in some areas of administrative law, the Court seems to have turned toward Congress and away from the Executive Branch. As compared with policymaking in the Judicial and Executive Branches, Congress is the most democratic and legitimate of the three federal branches, including even the independent agencies which are supposed to be shielded from politics but instead may be the most political of all. In fact, a key argument of this paper is that recent developments in administrative law exhibit a return to congressional primacy both in matters of interpretation and matters of policy, and that this is a good thing in terms of accountability and legitimacy.