University of San Diego School of Law
In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition that Congress gets involved when it is worth it in terms of gaining political support from oversight activities. The police patrol/fire alarm model of oversight predicts that Members of Congress have the strongest incentive to get involved when a constituent pulls an alarm. However, the high volume of oversight that is not responsive to particular alarms contradicts this prediction. Congress routinely engages in a very high volume of oversight, both formal and informal. Formal oversight includes more precise legislation, appropriations riders, earmarked funding, certification requirements and Senate advice and consent on appointments. Informal oversight includes hearings, direct communication with agencies, influence over appointments, investigations, and casework. This paper sets out and analyzes the various forms of formal and informal oversight and then examines key doctrines of administrative law, namely the nondelegation doctrine, Chevron and Vermont Yankee, and asks whether our understanding of those doctrines is affected by the fact of constant and consistent congressional involvement in and oversight of the administrative process.
Jack M. Beermann,
San Diego Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1999