Abstract In the past 15 years a scholarly debate has developed in the United States over the question "Who controls the bureaucracy?" Some have argued that Congress has a dominant influence on the bureaucracy, some that the president plays the major role in managing the bureaucracy, and others have emphasized the role of legal constraints on the bureaucracy, as enforced by the courts. Still others have asserted that the bureaucracy has a substantial amount of autonomy from the president, Congress, and courts. This article presents a formal model of multi-institutional policy-making that illuminates several key aspects of this debate. The model shows that there are conditions under which an agency will have considerable autonomy and conditions under which it will have virtually none. The model also shows that when an agency lacks autonomy, control of the agency usually cannot be attributed to just one institution. Finally, the model has some important implications for empirical tests of hypotheses about who controls the bureaucracy; among them is the fact that the empirical literature on control of the bureaucracy is based on a logic that gives a seriously incomplete picture of how the bureaucracy is controlled and who controls it. Show Journal Information The Journal of Law, Economics & Organization is an interdisciplinary exercise. It seeks to promote an understanding of many complex phenomena by examining such matters from a combined law, economics, and organization perspective (or a two-way combination thereof). In this connection, we use the term organization broadly - to include scholarship drawing on political science, psychology and sociology, among other fields. It also holds the study of institutions - especially economic, legal, and political institutions - to be specifically important and greatly in need of careful analytic study. Publisher Information Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. OUP is the world's largest university press with the widest global presence. It currently publishes more than 6,000 new publications a year, has offices in around fifty countries, and employs more than 5,500 people worldwide. It has become familiar to millions through a diverse publishing program that includes scholarly works in all academic disciplines, bibles, music, school and college textbooks, business books, dictionaries and reference books, and academic journals. Rights & Usage This item is part of a JSTOR Collection. Congress’s Authority to Influence and Control Congress has broad constitutional authority to establish and shape the federal bureaucracy. subject to certain constitutional limitations, how those holding agency offices are appointed and link to page 5 link to page 7 link to page 7 link to page 12 link to page 14 link to page 17 link to page 18 link to page 18 link to page 20 link to page 20 link to page 22 link to page 24 link to page 25 link to page 26 link to page 26 link to page 29 link to page 30 link to page 31 link to page 31 link to page 34 link to page 35 link to page 35 link to page 39 link to page 41 link to page 45 link to page 46 Congress’s Authority to Influence and
Control Executive Branch Agencies Contacts Congress’s Authority to Influence and Control Executive Branch Agencies 1 See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 500 (2010) (“Congress has plenary control 1 link to page 35 link to page 35 link to page 5 Congress’s Authority to Influence and Control Executive Branch Agencies 10 Id. § 2 (“The House of
Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of 2 link to page 8 Congress’s Authority to Influence and Control Executive Branch Agencies 19 See Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary
Executive, 51 3 Congress’s Authority to Influence and Control Executive Branch Agencies 27 “Structure” as Justice Antonin Scalia said, “is destiny,” meaning that an agency’s defining structural characteristics 4 link to page 11 Congress’s Authority to Influence and Control Executive Branch Agencies 32 See infra
note 67. 5 Congress’s Authority to Influence and Control Executive Branch Agencies 41 Edmond, 520 U.S. at 661 (“Our cases have not set forth an exclusive criterion for distinguishing between principal 6 Congress’s Authority to Influence and Control Executive Branch Agencies 49 Id. at 492–93 (quoting Myers v. United States, 272 U.S. 52, 164 (1926)). 7 Congress’s Authority to Influence and Control Executive Branch Agencies 59 Id. at 496–98. 8 Congress’s Authority to Influence and Control Executive Branch Agencies 70 See, e.g., CRS Report R46762, Congress’s Authority to Limit the Removal of Inspectors General, by Todd Garvey. 9 Congress’s Authority to Influence and Control Executive Branch Agencies 79 Mistretta v. United States, 488 U.S. 361, 371 (1989) (“The nondelegation doctrine is rooted in the
principle of 10 Congress’s Authority to Influence and Control Executive Branch Agencies 85 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (“Article I,
§ 1, of the Constitution vests ‘all 11 link to page 12 link to page 16 link to page 16 Congress’s Authority to Influence and Control Executive Branch Agencies 94 The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or 12 link to page 15 link to page 12 Congress’s Authority to Influence and Control Executive Branch Agencies
agency adjudication proceedings are primarily governed by other statutes. See ABA, SEC. OF ADMIN. L. & REG. PRAC., 13 Congress’s Authority to Influence and Control Executive Branch Agencies 114 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (“[N]o money can be paid out of the Treasury unless 14 Congress’s Authority to Influence and Control Executive Branch Agencies 124 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 15 Congress’s Authority to Influence and Control Executive Branch Agencies 130 U.S. CONST. art. I, § 7. 16 link to page 25 link to page 30
Congress’s Authority to Influence and Control Executive Branch Agencies 141 See Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam), aff’d, 463 U.S. 1216 (1983) 17 link to page 20 link to page 20 link to page 21 Congress’s Authority to Influence and Control Executive Branch Agencies coordinated by Cynthia Brown, at 1, 8. 18 Congress’s Authority to Influence and Control Executive Branch Agencies 156 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977); see Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 19 link to page 35 Congress’s Authority to Influence and Control Executive Branch Agencies fined no more than $100,000); see also id. § 3571(e) (If a statute imposes no fine or one that is lower than that 20 Congress’s Authority to Influence and Control Executive Branch Agencies the House it would not
take action on the contempt resolution, reasoning that the Department “will not prosecute an 21 link to page 22 link to page 22 link to page 22 Congress’s Authority to Influence and Control Executive Branch Agencies such subpoenas.”). 22 link to page 30 link to page 26 link to page 26 link to page 26 link to page 26 Congress’s Authority to Influence and Control Executive Branch Agencies 183 See, e.g., Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 64 (D.D.C. 2008) (holding that the court had 23 link to page 34 link to page 27 link to page 8 Congress’s Authority to Influence and Control Executive Branch Agencies 193 Id. art. II, § 4.
24 link to page 8 link to page 27 link to page 5 link to page 27 link to page 9 link to page 9 link to page 27 link to page 28 Congress’s Authority to
Influence and Control Executive Branch Agencies 199 The Supreme Court, in interpreting the Appointments Clause, has distinguished between officers (both principal and 25 link to page 28 link to page 29 link to page 41 Congress’s Authority to Influence and Control Executive Branch Agencies CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT, supra
note 205, at 20. Belknap retired two hours before 26 Congress’s Authority to Influence and Control Executive Branch Agencies 216 See Miers, 558 F. Supp. 2d at 56 (noting that a court must stand “ready to fulfill the essential judicial role to ‘say 27 Congress’s Authority to Influence and Control Executive Branch Agencies 224 Ethics in Government Act, Pub. L. No. 95-521, §§ 703, 705,
92 Stat. 1877–80 (1978) (codified at 2 U.S.C. §§ 28 link to page 12 link to page 12 link to page 32 link to page 12 Congress’s Authority to Influence and Control Executive Branch Agencies opposed to merely supplying or withholding its consent once negotiations had completed), the Senate has not served in 29 link to page 31 Congress’s Authority to Influence and Control Executive
Branch Agencies 237 See id. at 111 (writing that “approval of appointments can be used as leverage over related and even completely 30 link to page 26 Congress’s Authority to Influence and Control Executive
Branch Agencies 242 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 303 cmt. d, 314(1). 31 Congress’s Authority to Influence and Control Executive Branch Agencies 256 Id. at 229–30 (quoting U.S. CONST. art. I, § 3, cl. 6). 32 link to page 12 Congress’s Authority to Influence and Control Executive Branch Agencies 263 See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“We are of opinion that the power of inquiry—with process 33 Congress’s Authority to Influence and Control Executive Branch Agencies 273
See CRS Legal Sidebar, Prosecutions of Offenses Against Congress, by Todd Garvey. 34 Congress’s Authority to Influence and Control Executive Branch Agencies 282 Trump v. Mazars USA, LLP, 140 S.
Ct. 2019, 2032-36 (2020). In Mazars, the Court identified at least four “special 35 link to page 26
Congress’s Authority to Influence and Control Executive Branch Agencies separation of powers under the Constitution”) 36 link to page 39 link to page 40 link to page 40 Congress’s Authority to Influence and Control Executive Branch Agencies and the Enactment Process, 52 CASE W. RES. 489,
561–63 (2001). See, e.g., H.R. REP. NO. 456, at 75 (2020) (“The 37 link to page 18 link to page 26 link to page 26 Congress’s Authority to Influence and Control Executive Branch Agencies 308 See supra “Constitutional Limits on Non-statutory Legislative Actions” (discussing Immigration & Naturalization 38 link to page 16 link to page 16
Congress’s Authority to Influence and Control Executive Branch Agencies Section 2954. See, e.g.,
Cummings, 321 F. Supp. 3d 92. However, in Maloney v. Murphy, 984 F.3d 50 (D.C. Cir. 2020), 39 Congress’s Authority to Influence and Control Executive Branch Agencies covered by the Act, (2) “divest[ed them] of their constitutional role in the repeal of legislation,” and (3) “alter[ed] the 40 Congress’s Authority to Influence and Control Executive Branch Agencies 326 See, e.g., Brief of Amici Curiae Members of Congress in Support of Respondents, Sebelius v. Hobby Lobby Stores, 41 link to page 14 Congress’s Authority to
Influence and Control Executive Branch Agencies 334 Id. at 1247. 42 Congress’s Authority to Influence and Control Executive Branch Agencies Author Information Todd Garvey Congressional Research Service 43 Congress’s Authority to Influence and Control Executive Branch Agencies Congressional Research Service Who has power over the federal bureaucracy?So the bureaucracy has two masters: Congress and the president. Political authority over the bureaucracy is shared, then, according to the principles of separation of powers and federalism. On the national level, both Congress and officials in the executive branch have authority over the bureaucracy.
How does Congress exercise control over agencies and departments in the federal bureaucracy?Congress uses public hearings to monitor bureaucratic behavior. Under some circumstances, Congress can also control the bureaucracy by re-writing legislation and altering appropriations to provide greater direction to those who must implement its policies.
What is the president's role in the federal bureaucracy?The President is responsible for implementing and enforcing the laws written by Congress and, to that end, appoints the heads of the federal agencies, including the Cabinet. The Vice President is also part of the Executive Branch, ready to assume the Presidency should the need arise.
How does Congress exercise control over agencies and departments in the federal bureaucracy quizlet?Congress exercises control over the federal bureaucracy when it preforms legislative oversight through hearings, determines the budget for each agency, and when it uses congressional review to examine bureaucratic regulations.
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