Judging Congressional Oversight

The federal judiciary has imposed powerful limitations on Congress’s ability to influence administrative decision-making through its oversight activities. These limitations extend beyond those explicitly required by the Constitution, and evidence the judiciary’s highly restrictive vision of Congress’s ability to act outside of the formal legislative process. In essence, courts have decided that allowing Congress a greater participatory role in law administration would permit Congress to control bureaucratic decision-making. This, in turn, would produce numerous negative effects, such as dangerously impeding the President’s constitutional duty to execute the laws and replacing expert-driven regulation with largely unprincipled political wrangling. To forestall these undesirable outcomes, courts have adopted a doctrine of "complete delegation" – once Congress delegates a portion of its policy-making power to an agency through legislation, courts will aggressively limit Congress’s participation in how those laws are administered.

This Article asserts that complete delegation needs to be scaled back and refocused. The animating intuition behind complete delegation – that Congress will assume control of administrative decision-making – is unlikely to be borne out to any significant degree. Moreover, leaving the lion’s share of political oversight to the President poses under-appreciated principal/agent and separation-of-powers hazards. Instead, courts should view Congress’s non-legislative influence over how agencies wield delegated power as necessary to ensuring the political accountability of agency officials and as complementary to the political influence exercised by the President. By becoming more accommodating to legislator influence over administrative decision-making, courts can foster greater political accountability of agencies and reduce the significant principal/agent problems caused by broad (and often necessary) delegations of policy-making power.