Oversight and Insight: Legislative Review of Agencies and Lessons from the States

Harvard Law Review, December 2007 | Go to article overview
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Oversight and Insight: Legislative Review of Agencies and Lessons from the States


The Vermont Yankees of the Founding generation never would have foreseen a Supreme Court case like Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., (1) precisely because they never would have imagined the way in which the U.S. government would become an administrative state, a government not limited to the three branches laid out in the Constitution, but rather infused with--perhaps dominated by--hundreds of administrative agencies charged with the everyday business of governance. (2) Indeed, administrative agencies have become a prominent feature of the national government, and their rise has engendered many constitutional battles regarding their legitimacy--and correspondingly, much scholarly ink.

The dominance of agencies is not limited to the federal sphere, however. To take but one of fifty examples, the state of Connecticut boasts a wide range of agencies that includes departments of agriculture, consumer protection, education, environmental protection, and labor. (3) As a result, states must grapple with the same types of issues that vex national actors, such as the sort of public notice that agencies must provide before they issue regulations and the appropriate scope of judicial review of agency decisions.

This Note seeks to answer a question implicitly left open by the Supreme Court's opinion in INS v. Chadha, (4) which deemed unconstitutional Congress's use of a legislative veto to overturn agency decisions (5): how should legislative oversight fit into the modern administrative state? (6) To answer this question, the Note draws on a generally overlooked source of comparison--practice at the level of individual states. An examination of the interaction of agencies and legislatures at the state level demonstrates what is missing at the national level: deliberate, systematic review of agency regulations. This gap seems particularly stark in light of the federal executive's centralized and fairly systematic review of agency rulemaking, as well as Congress's fairly comprehensive oversight in an area like the budget. An examination of state practices in this area strongly suggests the need for structural reforms at the national level, reforms which might seem unrealistic at first blush, but which have already been floated by some commentators and members of Congress.

This Note proceeds in three parts. Part I describes legislative oversight of agency rulemaking at the federal level, including the fairly recent innovation of the Congressional Review Act (7) (CRA), and highlights differences between congressional and executive oversight of agency rulemaking. Part II describes legislative oversight of administrative regulations at the state level, painting in particular detail the interactions between agencies and legislatures in two states--Alaska and Connecticut--and suggesting that it is very much possible for legislatures to provide systematic review of agency rulemaking. Part III evaluates the need for change at the national level and proposes structural reforms.

I. "THE" ADMINISTRATIVE STATE:AGENCIES, CONGRESS, AND COURTS AT THE NATIONAL LEVEL

By sanctioning the proliferation of agencies but imposing a sizable number of procedural constraints on them, the Administrative Procedure Act (8) (APA), enacted in 1946, marked a compromise between those who feared the rise of administrative agencies and questioned their constitutionality and those who believed that agencies were a necessary component of the modern state. (9) The APA's provisions, however, did not address many larger, structural concerns raised by the administrative state, including the balance of power among Congress, the federal courts, and the executive branch in controlling these agencies. This Part addresses the important, often constitutional, questions relating to legislative oversight of the administrative state, focusing in particular on the post-Chadha relationship between Congress and agencies.

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