Read Part I here, Part II here, and Part III here.

Congress abdicates its responsibility by relying on the courts to enforce bureaucratic oversight.

The received antidotes to the administrative state—workforce reduction, ending judicial deference to agency interpretations of statutes, or demanding Congress write unambiguous laws—are hardly new; they have been recommended for as long as the administrative state has existed. New antidotes are needed, but that requires rethinking the problem. 

The enforcement of congressional oversight requests against the executive branch is directly contradictory to the idea of a unitary executive. Congressional oversight is often messaged as a benign concern with good government, ridding the bureaucracy of waste, fraud, and abuse. The idea of congressional oversight is to control power delegated from Congress to the executive branch. The solution is for Congress to delegate less and use legislation as its primary oversight tool. Empirical evidence suggests that when Congress directs its investigative authority toward the private sphere, the bureaucracy is less likely to investigate the private sphere. Instead, congressional investigations largely target the executive branch, not regulated interests. Thus, Congress is not investigating for any regulatory purpose but to score political points, typically against the opposite party when it controls the administration. This allows Congress to abdicate its investigative power to the bureaucracy which immediately shifts the nature of such investigations from limited to a legislative purpose to an unlimited law enforcement purpose. 

Government reform requires Congress to constantly investigate the special interests for whom it entered a deal to ensure those interests are still advancing the bargain between private interests and public ones. By aggressively investigating to ensure its deal is being preserved, it can more aggressively police regulatory agencies. For instance, when a congressional investigation determines that a digital token issuer is not selling securities, the Securities and Exchange Commission would be subject to congressional oversight if it asserted its jurisdiction to investigate the digital token issuer for violating the securities laws. That is how congressional oversight should work.

Congressional committees have existed since the first Congress, and Congress could easily use its appropriations to buttress its committees’ capacities for expertise. Indeed, as discussed above, the whole idea of an “agency” is that it has a “principal,” and Congress could readily serve that principal function. At the same time, Congress could rely on its standing committees to carry out the functions that many independent establishments carry out today. Such a situation would not be an aberration in our constitutional history: early congresses routinely setup committees for a regulatory purpose.

One response is that Congress sought that these agencies not only develop expertise and recommendations to their congressional overseers but be regulated as well. Congress regulates each time it presents a bill for the President’s signature. And to the extent that only an executive branch agency – rather than a congressional one – could enforce its regulations, that, too, does not require placing policy expertise within the executive branch. Most constitutional observers would wince at the idea that the Department of Justice could write criminal regulations with the force of law and then initiate investigations and indictments in reliance on those regulations. Examples permeate through American constitutional history of congressional committees engaging in fact-finding that leads to law enforcement actions by the executive branch. The Teapot Dome scandal began as a congressional investigation on April 15, 1922, leading to a criminal investigation by the then-Treasury Department’s Secret Service and culminating in an October 24, 1929, guilty verdict on bribery charges against former Interior Secretary Albert Fall. As such, bureaucracy is not necessary for law enforcement. 

Congress today prefers to conduct oversight in a manner that maximizes the number of hearings held per session while minimizing the time spent per hearing. This means that Congress is evading the resource cost attributed to conducting lengthy or multi-day hearings (which are themselves proxies for investigations that took months, if not over a year) by opting to give members more opportunities to earn the publicity, credit claiming, and position taking that comes with oversight hearings. The amount of time Congress spends conducting investigations has decreased even when the number of hearings has increased.

Further empirical evidence suggests that Congress can maintain this oversight preference by continually delegating investigative power to independent agencies and Inspectors General. When the FTC obtains a corporate scalp or an Inspector General discloses agency fraud, Congress immediately obtains content for its public hearings. If the history of the administrative state involved the delegation of investigative powers by Congress (what occurs pre-legislative enactment) and only later did Congress delegate regulatory powers (what occurs through legislative enactment), then, in the present era, Congress delegates its post-legislative enactment power—oversight. Thus, our current system involves congressional delegation of the investigative, regulatory, and oversight powers historically viewed as core legislative prerogatives. To highlight the nature of this delegation, the current role of independent “enforcement” agencies like the FTC – to investigate private entities for a policymaking purpose – and of Inspectors General – to investigate agency waste, fraud, and abuse – were both powers traditionally held by Congress. 

Conclusion

All that should be meant by “regulation” is the outcome of a deal between industry incumbents and public interest groups codified by regulators after a statutory enactment. If this is the correct understanding of what a regulation is, then whether the substance of the regulation tends to lean pro-industry or pro-public interest is not crucial. Instead, the relevant question is what the deal says about who is subject to the authority of the regulator. The answer is obvious: not simply those who entered the deal but also any party whose conduct may threaten the stability of the deal. 

This situation means that reforms to the administrative state cannot stop at reducing the workforce, limiting regulatory scope, or cutting discretionary programs. She who holds power in the administrative state is the special interest group representative who can move regulation to advance her client’s interests. To reform this process requires reforming the nature of regulatory authority – that is, regulatory jurisdiction. What may be observed as a conflict between Congress and the President concerning who controls the bureaucracy may be, in fact, a détente that enables interest groups to set the federal agenda. 

Neither congressional oversight, the courts, nor the bureaucracy itself can change the power of regulatory authority. Only Congress can solve that problem. The most potent tool to do that is an Executive Branch Reorganization Act, which Congress must pass. This act would permit the President to submit plans for restructuring the executive branch and the nature of the regulatory process. Executive Branch Reorganization works as follows: Congress passes a statute authorizing the President to submit his executive branch reorganization plans to Congress. If Congress does not object to those plans, the plans become law. Thus, Congress provides the template for the President to conduct civil service reform, end wasteful discretionary programs, and move independent agencies into Cabinet Departments in a manner that may avoid the litigation risk a series of executive orders would pose. This is the only way to more permanently implement the Department of Government Efficiency (“DOGE”) agenda. Executive Branch reorganization would not only be disruptive but would empower Congress to cease its contemporary abdication of legislative prerogatives while empowering the President to oversee his own branch of government. 

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