The Case for Congressional Regulatory Review

Abstract

The executive and legislative branches of government oversee the modern administrative state. Presidents have a duty to “take Care that the Laws be faithfully executed.” But Congress is entitled to regulate the regulators no less than the president; after all, Congress exercises its enumerated powers to create and fund domestic regulatory agencies. Thus, equipped with overlapping authorities, the elected branches of government historically have competed for the reins of administrative policy-making. Such competition represents a constitutionally healthy manifestation of dueling institutional “ambitions.”

At present, however, the contest between the political branches is dangerously out of balance. Since Richard Nixon, presidents have increased control over the administrative state through a process known as “White House regulatory review.” Presidents developed this powerful management tool unilaterally, and today, these functions are performed out of the Office of Information and Regulatory Affairs. Congress, however, hasn’t kept pace. Not only has the legislature failed to create an equivalent of White House regulatory review, but the overall quality of oversight in Congress has declined as power has centralized in leadership and away from committees in both the House and Senate. The result is that the president calls the shots on the administrative state while Congress sits on the bench. Through its ever‐​tightening grip over the administrative state, the presidency has accumulated a constitutionally worrisome concentration of power.

To remedy this alarming imbalance, this paper proposes the creation of a congressional capacity to evaluate administrative action. Because regulatory review is values driven, the only feasible institutional design is to give each party caucus in Congress its own ability to vet administrative action.

Keywords: Congressional Oversight, Political Branches, Party Oversight, Administrative Oversight, Presidential Oversight, Caucus, Party Caucus

JEL Classification: D02, D4, D41, H1, H10, H11, H12, H19