Congressional Controls

We start with Congress's ex post review of agency action. The first case, INS v. Chadha, deals with Congress's ability to use a so-called "legislative veto" to reverse agency decisions. The next reading focuses on the modern replacement for legislative vetoes--the Congressional Review Act. Next, we will look at proposed legislation (definitely not the law...yet!) that would go even further in this same direction.

Finally, we end the discussion of Congress's control of agencies with the most recent case involving perhaps Congress's most important form of ex post control: oversight, investigations, and hearings. If you've ever watched C-SPAN (who among us has not?), you've probably seen one of these hearings. Although empirical research suggests that congressional oversight of this kind can be surprisingly effective, see Brian D. Feinstein, Congress and the Administrative State, 95 Wash. U. L. Rev. 1189 (2018), sometimes Congrees's powers in this regard hit strong headwinds, particularly in times of deeply divided government (i.e., where one party controls one or both chambers of Congress and the other controls the Executive Branch. In Trump v. Mazars, the Supreme Court answered some questions about Congress's ability to back its oversight activities with the force of law through subpoenas. Although the specific subpoenas at issue in Mazars involved the personal papers of the President and therefore present a slightly different issue than a congressional subpoena involving oversight of the daily workings of the administrative state, the opinion drops numerous breadcrumbs that suggest how the Court might deal with disputes over the congressional oversight power of the administrative state.