Avoiding Oversight: Legislator Preferences and Congressional Monitoring of the Administrative State 8 Journal of Law, Economics & Policy 2011-2012

8 J.L. Econ. & Pol'y 23 (2011-2012)
Avoiding Oversight: Legislator Preferences and Congressional Monitoring of the Administrative State

handle is hein.journals/jecoplcy8 and id is 25 raw text is: 20111

AVOIDING OVERSIGHT:
LEGISLATOR PREFERENCES AND CONGRESSIONAL
MONITORING OF THE ADMINISTRATIVE STATE
Brian D. Feinstein*
INTRODUCTION
In recent decades, the longstanding conflict between Capitol Hill and
the White House over control of the administrative state has intensified,
with both institutions devising new mechanisms that test the limits of their
respective roles.' In response, administrative law scholars have focused
their attention on congressional and presidential involvement in
administration that approaches-or oversteps-constitutional boundaries.'
As a result, the legal academic literature tends to overlook Congress's
ordinary involvement in administrative decision making.' In particular,
legal scholarship mostly neglects one of the most fundamental means of
involvement in executive affairs available to the Legislative Branch: the
oversight hearing. Surprisingly little is known about the motivations of
members of Congress to perform this most basic means of monitoring the
* I thank Dan Carpenter, Tara Mailer, Eleanor Powell, Eric Schickler, Ken Shepsle, Keith Smith,
Charles Stewart, Mark Tushnet, Omar Wasow, and two anonymous peer reviewers with the Journal of
Law, Economics, and Policy for their helpful comments. I also gratefully acknowledge the Center for
American Political Studies at Harvard University for its generous support.
1 These new mechanisms have had varying degrees of success passing constitutional muster.
See, e.g., Clinton v. New York, 524 U.S. 417, 447-49 (1998) (holding the presidential line-item veto
unconstitutional); Morrison v. Olson, 487 U.S. 654, 696-97 (1988) (upholding congressionally man-
dated good cause protections for the office of the independent counsel); Bowsher v. Synar, 478 U.S.
714, 726-27 (1986) (disallowing an executive officer removable by Congress from exercising budgetary
authority); INS v. Chadha, 462 U.S. 919, 958-59 (1983) (prohibiting congressional committees' use of
the legislative veto); Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1993), reprinted as amended in 5
U.S.C. § 601 (2000) (clarifying the functions of the Office of Information and Regulatory Affairs
(OIRA), a presidentially controlled regulatory planning office within the Office of Management and
Budget).
2 This focus on boundary testing is understandable. Considering that legal challenges to congres-
sional and presidential control mechanisms often arise when those mechanisms test the limits of separa-
tion of powers norms, it is unsurprising that legal scholars devote considerable attention to those mecha-
nisms that appear to be near the boundaries of what is constitutionally permissible.
3 Jack M. Beermann, Congressional Administration, 43 SAN DiEGO L. REV 61, 64-65 (2006)
(noting the fact that Congress is deeply involved in the day to day administration of the law as insuf-
ficiently noted in legal scholarship). But see Mark Seidenfeld, The Psychology of Accountability and
Political Review of Agency Rules, 51 DUKE L.J. 1059 (2001); Jonathan R. Macey, Organizational De-
sign and Political Control of Administrative Agencies, 8 J.L. ECON. & ORG. 93 (1992).

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