Congressional Incentives and the Administrative State

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New York University Journal of Law & Liberty


When Judge Douglas H. Ginsburg delivered the Hayek lecture in 2016, his talk was based on an essay that he and Judge Steven J. Menashi co-authored called “Our Illiberal Administrative Law.” That essay argued that even though the Administrative Procedure Act (“APA”) was intended to promote accountability for agency action and to provide “a check upon administrators,” as the Supreme Court once put it, the body of administrative law that had developed around the APA often failed to provide that accountability. Deference to agencies was such that courts were often “relegat[ed] to the correction of procedural errors and of only the most blatant overreaching of an agency’s statutory mandate.” The essay noted the lack of enforcement of the nondelegation doctrine, the extension of Chevron deference from policy-laden judgments to traditional legal questions, and the evasion of the requirements of notice-and-comment rulemaking through adjudications, interpretive rules, and guidance documents.

Since that essay was published in 2016, the Supreme Court has entertained significant changes to our administrative law. The Court has limited the circumstances under which courts must defer to an agency’s interpretation of its own regulations. It has reduced its reliance on Chevron deference, and it is considering this term whether to retain the Chevron precedent at all. The Court has expanded the “major questions doctrine,” which some see as enforcing a nondelegation principle. It has given renewed attention to the requirements of the Appointments Clause and the President’s right of removal. It may have tightened the requirements for surviving arbitrary-and-capricious review. And it is considering other issues this term, such as the accountability promoted by the Appropriations Clause and whether the Seventh Amendment precludes some agency adjudications. So many of the administrative law doctrines that Judges Ginsburg and Menashi discussed in 2016 are being reconsidered.

Given these shifts in the administrative law landscape, it is difficult to sound a pessimistic note. But perhaps it is not so difficult if one addresses the flip side of the debate over administrative policymaking, which is the role of Congress.

Underlying the critique of deferential administrative law doctrines is the belief that administrative policymaking has displaced legislation—that the agencies are making policy decisions that should be made by elected representatives in Congress. And a prominent thought has been that if the courts were less indulgent of agency policymaking, it would force Congress to legislate more frequently, more specifically, and on a wider range of subjects—rather than delegate policymaking discretion to administrative agencies.

We are skeptical that is correct because Congress is not only responding to judicial doctrines. Rather, Congress has structural reasons and incentives for relying on agency policymaking and for engaging in activities such as oversight at the expense of its legislative role. Some proposals aim at bolstering Congress’s legislative capacity, but there are reasons for thinking that enhancing the legislative function of Congress would not address the problems that critics of administrative policymaking identify with the administrative state. Congress can become bureaucratized too. And in many ways, congressional lawmaking looks a lot like administrative policymaking: dominated by an expert, unelected staff, marked by interest group bargaining with little public participation, and involving a correspondingly limited role for the broader public interest that Congress is supposed to represent.

We wanted to offer some thoughts about how we might think about the administrative state even if we do not expect Congress to resume the robust legislative function that its critics claim has been displaced by agency policymaking. In other words, if at least in the short term, Congress is not going to change dramatically, then the administrative state will be with us for better or for worse, and we might consider how to make it better rather than worse.

This Article proceeds in two basic parts. Part I surveys the story of congressional decline and some common proposals for congressional reform, and it provides some reasons for thinking that congressional structure and incentives make it unlikely that we will see a transformation in the short term. Part II addresses the values we may have lost in the decline of congressional lawmaking and the shift toward administrative policymaking. And it suggests that it would be worthwhile to consider how to incorporate those values into the administrative policymaking process that we have. To begin that consideration, we have two main proposals: focusing on congressional oversight, to which Congress is more inclined than legislation, and reforming the administrative process through executive order—that is, in ways that do not depend on congressional or judicial change.

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