Criticisms abound of a bloated, unaccountable, arbitrary, and abusive federal bureaucracy. But what if the way in which the critics have lambasted the administrative state is misconceived? The critics have ideas about potential antidotes: changing how the courts review administrative actions, increasing congressional capacity for oversight, terminating wasteful spending programs, and, above all else, increasing presidential – that is, democratic – oversight over the bureaucracy contained within his branch. 

In four posts, I challenge the received understanding of the American federal administrative state (“administrative state”) by exposing some core myths about its development. Part I argues that congressional oversight over administration is premised on the idea that Congress controls the bureaucracy, which conflicts with the “unitary” view of presidential power. Part II argues that how the bureaucracy determines its regulatory jurisdiction is much more fundamental to its regulatory power than the substance of any particular regulatory activity. Part III argues that special interests control the substance of regulation through legislative deals made between Congress and those interests. Undoing the regulatory apparatus requires renegotiating those deals. Part IV argues that by rethinking the role of congressional oversight, significant regulatory reform can occur. If the argument herein is persuasive, then there is only one method for permanently reorganizing the administrative state: executive branch reorganization, which requires Congress. 

Both Congress and the President believe they control the bureaucracy. 

The idea of a commission or agency was originally intended to be an extension of Congress. In fact, this understanding was built into the organizing statutes behind the first agencies. The legal theory behind an agency or a commission is rooted in the common law principle that a principal controls his agent. In the emerging 19th century bureaucracy, that principal was unquestionably Congress. Congress’s control over the agency was not simply theoretical. At the Founding, Congress relied on committees to conduct legislative investigations and even adjudications. Of course, agency theory means the idea of a legislative principal and a bureaucratic agent involves a relationship wherein Congress delegates authority to the agent. In delegating authority but maintaining control, Congress can remain the principal. That principal-agent theory means delegation to the agent requires control by the principal is precisely what is meant by congressional oversight. Without delegation, there is little to oversee. 

The idea of Congress controlling the bureaucracy was core to the original understanding of the administrative state during its formation in the 19th century. Control, in this sense, was noncontroversial: 19th-century bureaucracy lacked law enforcement power, and the investigative requests it did issue were specific to a policy purpose—not any sense of exercising the constitutional “take care” power. 

This period inspired the idea of legislative “oversight” of the bureaucracy as control – a notion still present today in describing Congress’s standing committees as tasked with exercising “continuous watchfulness” over the administrative state. In a world where bureaucratic agents are subject to a legislative principal, “oversight” in this manner is noncontroversial, but when our jurisprudence shifted to conclude that the bureaucracy is subject to executive control, legislative control suddenly raised separation of powers concerns. 

Our present jurisprudence and ideas of reform tend to ignore the reality that Congress and the executive branch have disparate views on who controls the bureaucracy. Some scholars still describe the bureaucracy as “Congressional.” Current constitutional doctrines dictate that whenever an establishment head is nominated by the President and confirmed by the Senate, an executive, rather than legislative, agency exists. And yet establishments that fit that rule – the Government Accountability Office or Library of Congress (both headed by presidentially appointed and Senate-confirmed heads) – have been determined to be arms of Congress. 

Related to the debates about the proper branch charged with supervising the bureaucracy, scholars get into thorny debates about Congress’s delegation of legislative responsibility to the executive branch. Technically, the argument goes, the delegation is impermissible if the grant of power lacks an intelligible principle; with an intelligible principle, the delegation is simply an authorization of executive power. But what is an intelligible principle? If anything, it is some indicia that Congress remains in an oversight capacity over the agency. In this sense, and consistent with principal-agent theory, Congress cannot delegate to an agency it may not control. 

Notwithstanding the academic debates, delegation is rampant. But what is delegated? Most administrative state critics get exercised about the delegations of rulemaking power as the meat of regulatory authority. But rulemaking is a recent phenomenon in American Legal Development. For over a century since the Founding, Congress delegated investigative and adjudicatory powers to commissions while reserving rulemaking to itself in the form of bill-writing. By delegating auxiliary powers to bill-writing on to commissions and retaining authorship over policy development, Congress maintained control over administration. That all changed in the early 20th century when Congress began to authorize the bureaucracy to engage in rulemaking – what was previously thought to be the scope of legislative bills. 

The Constitution vests all executive power solely within the President. Unitary executive theory suggests that this constitutional dictum means that no entity within the executive branch is outside the President’s supervision and control. Thus, for instance, the Federal Trade Commission is not an “independent” entity walled off from the President’s political goals; it is no different, as a constitutional matter, from a Cabinet department or White House office, where advisors in control of those entities serve at the President’s pleasure. 

Several problems arise with this view. Modern administration has meant that Cabinet departments and executive branch agencies engage in a host of activities required by statute and not subject to the President’s discretion. The Department of Health and Human Services must approve medical device approval applications before they are marketed; the Department of Education must partially fund public school systems; and the Securities and Exchange Commission may not expend funds outside the limits of its appropriation. Why? Because Congress said so and the President so consented. Concerning these ministerial duties, the President has no choice but to carry out or otherwise comply with mandates set forth by Congress. Unitary theorists would point out that despite the President’s duties expanding beyond merely taking care of the execution of law as his discretion warrants, it is the President – and no one else – whose task it is to perform executive duties. 

Answering “Who controls the bureaucracy?” will be a key source of tension between the presidency and Congress as they work to reform the administrative state. 

Daniel Epstein is an Assistant Professor of Law at St. Thomas University Benjamin L. Crump College of Law.