Reinvigorating Congress’s Oversight Role of the Federal Bureaucracy

by Chris Walker — Wednesday, Oct. 18, 2017@chris_j_walker

chafetzAs I noted last month, the ABA Annual Administrative Law Conference is my favorite adlaw event of the year. This year’s program, which starts tomorrow, might be the best one (I’ve attended) to date. Lots of great panels, so check out the full program here.

The first panel of the day — Reinvigorating Congress’s Oversight Role of the Federal Bureaucracy — is one I’ve organized around Josh Chafetz’s terrific new book Congress’s Constitution.  Here’s a description of the panel (and panelists):

The Yale University Press recently published a book by Cornell law professor Josh Chafetz entitled Congress’s Constitution. This timely book details the historical foundations for a number of powerful tools at Congress’s disposal—the power of the purse, the contempt power, freedom of speech and debate, and other oversight tools—to rein in the federal bureaucracy and to resolve Congress’s conflicts with the other branches of the government. This panel will discuss how Congress has used and can better utilize these tools to reassert itself in the modern administrative state. Two of the panelists (Professor Kristin Hickman and Brookings Senior Fellow Philip Wallach) are among the nation’s leading legal experts on administrative law and the role of Congress. The other two panelists either serve (Amanda Neely) or have served (Michael Bopp) in the Senate on committees with extensive oversight responsibilities—the latter of whom having conducted the Republican-led Senate oversight investigation of the Bush Administration’s handling of Hurricane Katrina response.

Definitely join us tomorrow morning for what should be a really engaging panel discussion.

While on the topic of Congress’s Constitution, last week I posted to SSRN a draft of an extended review of Chafetz’s book, which will be published in the Michigan Law Review next year. Here’s a summary of the review from the abstract:

In Congress’s Constitution, Josh Chafetz provides a timely and compelling historical account of the powers Congress possesses to compete with the other branches of government in our separation-of-powers framework. This Review makes two main observations. Particularly in light of the rise of the regulatory state, Part I explains how the toolbox of congressional powers Chafetz assembles can play a critical role in overseeing and influencing federal agency regulatory activities. Part II then offers a word of caution concerning Congress’s use of this toolbox without also passing laws. To restore Congress’s proper role in the modern administrative state, it is not enough for members of Congress to effectively oversee regulatory lawmaking. Congress must regularly legislate — to reauthorize and modernize the statutes that govern federal agencies, to respond to regulatory activity with which Congress disagrees, and to preserve the separation of powers between legislation and regulation.

You can download the full draft of my review here. I’m still revising the review, so comments are definitely welcome. (Speaking of comments, thanks to the always-generous Peter Strauss for sending along some insightful (and unsolicited) comments on the review today. One of my favorite memories to date as a law professor is when Peter Strauss sent along some unsolicited comments on one of my first law review articles. Senior administrative law scholars like Peter have set a very high bar for the rest of us to be generous and generously engaged in others’ scholarship in the field.)

 

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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