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Theories and Projects
Congressional Oversight My research leads to me to conclude that Congress selects those institutional strategies that best ensure that congressional oversight hearings can advance the electoral interests of members and the party. The public form of congressional oversight is simply the activity of House and Senate committees with oversight jurisdiction and conducted in accordance with that jurisdiction. A congressional staffer sending an informal request for information to an agency staffer may be a smart tactic for accessing information, but it is not what ought to be described as oversight with any formality. A Freedom of Information Act (FOIA) request from a member of Congress is not congressional oversight. A hearing from a committee or subcommittee lacking oversight jurisdiction is not congressional oversight. However, despite the salience of hearings, hearings serve an electioneering purpose. Congress's preferred method for protecting its ideological preferences in the development, implementation and enforcement of the law involves delegating private rights of action to individuals and special interests and creating quasi-legislative officers in the executive branch. Thus to the extent oversight has an ideological valence as well as an electoral one, Congress delegates its ideological oversight powers. This makes sense once one considers that litigation under FOIA or the Administrative Procedure Act informs the electoral oversight agenda (see the House Oversight hearing and investigative report related to my client's successful case against the FTC) and Inspector General investigations also inform the electoral oversight agenda -- indeed former president Trump's first impeachment was based on information disclosed by an Inspector General to Congress. Thus what determines whether an issue will get on the public congressional oversight agenda is simply whether the issue will advance the electoral interests of the committee members, particularly the chair. Nondelegation Doctrine Several legal scholars have pointed to 18th century evidence of Congress delegating rulemaking discretion to executive branch officers as evidence that there is no "originalist" case for the nondelegation doctrine - that is, that authorization of legislative power to the executive branch without guiding legislative principles is unconstitutional. I would argue that the examples of rulemaking delegation presented by scholars like Mortenson & Bagley, Parrillo, and Mashaw are debatable. But I also think one can concede that the early Congress authorized executive officers with policymaking authority without giving up the foundational critique of the modern administrative state. There is a difference between delegating legislative power to presidentially-controlled officers and delegating legislative powers to agencies independent of congressional control. It is the latter activity, not the former, that creates the administrative state. Unitary Executive Theory Unitary executive theorists argue that the president has all-encompassing over the executive branch. The standard unitary executive theory, however, does not object to the proposition that the president's power is "all-encompassing" but also subject to dilution or limitation. In this sense, the president exercises all the executive power, but the executive power can be limited, for instance, by Congress. Under the standard account, the only sort of limitation of executive power that would violate the idea of an unitary executive would be if Congress vested some of the executive power in an official who is independent of the president. Those who view presidential power and the separation of powers as important, however, should reject this standard account of unitary executive theory or the idea of unitariness in toto. More important than the scope of presidential power is the need for the president to be independent from congressional control and whose exercises of law enforcement discretion cannot be diluted by legislative activity. Thus, for "originalists" or constitutionalists, an immutable or autonomous executive, rather than an unitary one, is ideal. My argument is that strong partisans of presidential power should reject the civil service, independent agencies and the like as part of the executive branch because these individuals and entities act with delegated legislative power not inherent constitutional law enforcement authority. The moment an unitary executive theory seeks to make substantive claims about control over agencies exercising legislative power, any strong theory about executive immutability begins to disassemble. A president cannot be an autonomous executive without a strong theory that the executive is immune from compulsory congressional process (subpoenas) or citizen suits. Those theorists who seek to push for a unitary theory that accommodates judicially-reviewable congressional oversight of presidential discretion ultimately are not committed to the idea of presidential autonomy but to a static vision of a bureaucracy guided by formal constitutional norms dislodged from the presidential persona. It is hard to square such a vision with original constitutional meaning. Pluralism as the Theory of Federal Regulatory Power Our administrative law is defined by pluralism. That administrative law empowers special interests who both shape regulation and shape the decision making agenda of courts means that executive branch policy making follows a pluralistic model as opposed to a model of policy administered by a chief executive (a Hobbesian sovereign model of state power). As a practical matter, the president cannot effectively manage bureaucratic pluralism and when he tries, his agenda unilaterally fails. It is decidedly not the president who holds political power. Administrative law pluralism is a theory that explains congressional control of the executive - indeed a “fire alarm” system is descriptively pluralistic - as well as the legislative nature of administrative law - defined by contestation and collective bargaining, not unitary exercises of law enforcement discretion. |