Key Tensions in Establishing a Government Department: Disruption 101

The American federal administrative state, often criticized for being bloated, unaccountable, and arbitrary, may not be understood correctly by its critics. Many suggest solutions like changing how the courts review administrative actions, enhancing congressional oversight, cutting wasteful spending, and increasing presidential oversight, all with the goal of improving accountability and efficiency within the bureaucracy.

In a series of posts, I aim to challenge common misconceptions about the administrative state’s development. Part I questions the notion that Congress controls the bureaucracy, which conflicts with the idea of presidential power. Part II explores how the bureaucracy’s regulatory jurisdiction is crucial to its power, more so than the specific regulations it enforces. Part III delves into how special interests influence regulation through legislative deals with Congress, making undoing regulations a complex task. Lastly, Part IV discusses how rethinking congressional oversight could lead to significant regulatory reform.

When the administrative state emerged in the 19th century, agencies and commissions were viewed as extensions of Congress, with the legislative body holding the reins of control. Delegating authority to the agencies while maintaining control was key to Congressional oversight. Today, however, there is a disparity in how Congress and the President perceive their roles in controlling the bureaucracy.

While some scholars still argue that the bureaucracy is under Congressional control, current legal doctrines place executive heads nominated by the President and confirmed by the Senate firmly under the executive branch. Delegating legislative responsibility to the executive can lead to thorny debates about the extent of Congressional oversight and control.

Delegation has been a common practice, with rulemaking, often seen as the core of regulatory authority, being a relatively recent development. Initially, Congress retained policy-making power while delegating investigative and adjudicatory authority to commissions. However, the landscape changed in the early 20th century when Congress started allowing rulemaking by bureaucratic agencies.

The concept of the “unitary executive” theory asserts that all executive power rests with the President, allowing for close supervision and control over all entities within the executive branch. However, modern administrative practices sometimes limit the President’s discretionary powers, as certain activities mandated by statute may not be subject to the President’s control.

Navigating the complexities of the administrative state requires a nuanced understanding of the balance of power between Congress and the President. By rethinking oversight mechanisms and addressing delegation of authority, significant regulatory reforms can be achieved, reshaping the administrative state for the better.