Feinstein on Congressional Oversight of the Executive Branch (AdLaw Bridge Series)

by Emily Bremer — Saturday, Apr. 22, 2017@emilysbremer

Political control of administrative agencies is a hot topic these days.  And Brian D. Feinstein has a timely new article, Congress in the Administrative State, forthcoming in the Washington University Law Review that empirically evaluates how Congressional oversight hearings fit into the picture.  Using an original dataset constructed from inspectors general semiannual reports, Government Accountability Office annual “top management challenges” lists, and New York Times and Wall Street Journal editorials, Feinstein evaluates when congressional oversight hearings are likely to occur and whether those hearings affect agency action.

Here is the abstract:

In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial – but underappreciated – means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight hearings are remarkably effective in altering agency behavior.

This Article provides a corrective. It presents the legal mechanisms that give oversight hearings their force and situates these hearings in their historical and legal context. In light of this framework and historical practice, this Article posits that ex post oversight hearings constitute a substantial means of political control over the administrative state. Because oversight gets its bite from an implicit threat of legislative sanctions should an agency not change its behavior following hearings, however, committees’ decisions whether to pursue oversight hinge on the credibility of this threat.

To test this theory, this Article introduces an original dataset of over 14,000 agency “infractions,” i.e., agency actions that are potential subjects of hearings. Leveraging these data, this Article finds, first, finds that oversight is most likely to occur when the particular preference alignment of Congress, the relevant committee, and the agency make the threat of new legislation credible. A second empirical analysis finds that, when oversight hearings do occur, they are consequential; infractions that are subject to hearings are almost 20% less likely to recur compared to otherwise similar infractions that are not subject to hearings.

These findings call into question the received wisdom regarding Congress’s role in governance. Whereas scholars focused on the political branches’ formal powers see Congress as a branch in decline, a more nuanced picture emerges when one also considers “soft powers,” like oversight. Thus, these findings offer a blueprint for greater congressional involvement in administration: to increase Congress’s role in governance, committee membership rosters should be representative of the larger legislature and committees with overlapping jurisdictions should be established. By redesigning its internal structure, Congress can promote more frequent oversight and, because oversight is effective, thereby provide a stronger check on presidential administration.

Feinstein argues that his empirical findings reduce the need for concern about judicial deference to agency decisionmaking and suggest that Congress could and should make changes its internal structure and operations to make oversight hearings even more effective.  Whether or not you agree with these prescriptive claims, the work is a novel and important contribution to our understanding of the relationship between Congress and administrative agencies.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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About Emily Bremer

Emily S. Bremer is an Assistant Professor at the University of Wyoming College of Law. Before joining the faculty, Professor Bremer served as the Research Chief of the Administrative Conference of the United States, worked as an associate in the telecommunications and appellate practice of Wiley Rein LLP, and clerked for Judge Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. Her research focuses on the intersection of public and private governance, with a particular focus on the use of privately developed technical standards in government regulation.

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