Congress in the Administrative State

61 Pages Posted: 31 Mar 2017 Last revised: 16 May 2018

Brian D. Feinstein

University of Pennsylvania, The Wharton School

Date Written: 2018

Abstract

In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial – but underappreciated – means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight hearings are remarkably effective in altering agency behavior.

This Article provides a corrective. It presents the legal mechanisms that give oversight hearings their force and situates these hearings in their historical and legal context. In light of this framework and historical practice, this Article posits that ex post oversight hearings constitute a substantial means of political control over the administrative state. Because oversight gets its bite from an implicit threat of legislative sanctions should an agency not change its behavior following hearings, however, committees’ decisions whether to pursue oversight hinge on the credibility of this threat.

To test this theory, this Article introduces an original dataset of over 14,000 agency “infractions,” i.e., agency actions that are potential subjects of hearings. Leveraging these data, this Article finds, first, finds that oversight is most likely to occur when the particular preference alignment of Congress, the relevant committee, and the agency make the threat of new legislation credible. A second empirical analysis finds that, when oversight hearings do occur, they are consequential; infractions that are subject to hearings are almost 20% less likely to recur compared to otherwise similar infractions that are not subject to hearings.

These findings call into question the received wisdom regarding Congress’s role in governance. Whereas scholars focused on the political branches’ formal powers see Congress as a branch in decline, a more nuanced picture emerges when one also considers “soft powers,” like oversight. Thus, these findings offer a blueprint for greater congressional involvement in administration: to increase Congress’s role in governance, committee membership rosters should be representative of the larger legislature and committees with overlapping jurisdictions should be established. By redesigning its internal structure, Congress can promote more frequent oversight and, because oversight is effective, thereby provide a stronger check on presidential administration.

Suggested Citation

Feinstein, Brian D., Congress in the Administrative State (2018). 95 Washington University Law Review 1189 (2018); University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 803; U of Chicago, Public Law Working Paper No. 621. Available at SSRN: https://ssrn.com/abstract=2943074

Brian D. Feinstein (Contact Author)

University of Pennsylvania, The Wharton School ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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