When Influence Encroaches: Statutory Advice in the Administrative State

By Hudson, William C. | The William and Mary Bill of Rights Journal, March 2018 | Go to article overview

When Influence Encroaches: Statutory Advice in the Administrative State


Hudson, William C., The William and Mary Bill of Rights Journal


INTRODUCTION..............658

A. Both Decisional Authority and Advisory Influence Are "Power " for Purposes of the Separation of Powers...............658

B. Both "Undermining" and "Aggrandizing" Violate the Separation of Powers...............659

I. STATUTES GRANTING CONGRESS ADVISORY INFLUENCE OVER THE EXECUTIVE BRANCH...............660

A. Corporate Boards...............660

B. Advisory Committees...............664

1. Appointment Creep...............666

2. Powerful Committees...............668

C. Mandatory Consultations...............668

II. REGULATORY CAPTURE...............669

A. Defined...............669

B. Social Psychology...............673

C. Political Science...............675

1. Congress...............675

2. Executive Branch...............676

III. THE SEPARATION OF POWERS...............678

A. NRA Political Victory Fund...............680

B. Interference with Decision-Making Processes...............684

C. The Formalist Fix...............687

CONCLUSION...............689

INTRODUCTION

This Article addresses a specific legal question: whether Congress violates the separation of powers by requiring Executive Branch officers to serve on the boards of corporations, and on advisory committees, created and staffed by Congress. These statutorily enacted opportunities for Congressional appointees to influence Executive Branch officers' decision-making is what I call "statutory advice." To answer this question, two principles need stating from the start. First, the type of power to be separated in our constitutional structure is both the actual authority to decide an issue ("decisional authority") and the power arising from opportunities to influence decision makers ("advisory influence"). This was the holding ofFECv. NRA Political Victory Fund1 in the D.C. Circuit, and was also suggested by the Supreme Court in Bowsher v. Synar.2 Second, to violate the separation of powers, one branch need only be "undermined;" there need not be "aggrandizement," or the assumption of additional powers by another branch. Next, these two principles are discussed in more detail.

A.Both Decisional Authority and Advisory Influence Are "Power" for Purposes of the Separation of Powers

Courts have, at times, conducted separation of powers analysis by taking stock of power-not just as a formal grant of decisional authority, but also as the opportunity for advisory influence.3 A comparison of three cases-INS v. Chadha,4 FEC v. NRA Political Victory Fund, and Bowsher v. Synar-will illustrate this principle.

In INS v. Chadha, the Supreme Court held unconstitutional a statute granting the House of Representatives the power to veto certain executive branch decisions.5 By contrast, in FEC v. NRA Political Victory Fund, the D.C. Circuit held unconstitutional an arrangement in which Congressional agents, though not possessing any powers to vote on the Commission, had been given ex officio advisory roles on the Commission.6 Finally, whereas Chadha and NRA Political Victory Fund are at opposite ends of the spectrum in terms of the type of power to be separated, Bowsher v. Synar registers somewhere between them. In Bowsher, the Supreme Court held that the Comptroller General could not balance the budget pursuant to the Gramm-Rudman-Hollings Act because the Comptroller General is an agent of Congress, not the Executive Branch.7 In reaching this conclusion regarding the Comptroller General's status, the Court weighed both the formal authorities and the informal influences bearing upon the Comptroller General.8 The Court reasoned that, as a formal matter, the Comptroller General was removable only by Congress, and also that "the political realities reveal that the Comptroller General is [not] free from influence by Congress."9 Instead, "Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch," and "the Comptrollers General have also viewed themselves as part of the Legislative Branch. …

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