The Congressional Competition to Control Delegated Power

I. Introduction When passing legislation, Congress routinely delegates considerable discretionary authority to administrative agencies. To control its grant of power, Congress relies primarily on two instruments: statutory language limiting agency discretion and ex post oversight by congressional committees. Political scientists who study these forms of control disagree about their relative effectiveness, but they tend to assume that committees work on behalf of Congress to see that agencies remain faithful to the majority's preferences. Thus, in the conventional understanding, the internal delegation of oversight authority to congressional committees helps to regulate the external delegation of authority from Congress to administrative agencies. We argue that this use of internal delegation is a gamble. Contrary to the conventional view, committee members sometimes defy majority preferences rather than reinforce them. This split occurs because individual committee members, to further their own interests, vie for control over agencies, both with each other and with past enacting majorities. Just as Congress creates a principal-agent problem when it delegates administrative power to agencies, so does it create an internal accountability problem when it delegates oversight power to committees. Indeed, one delegation might exacerbate the other. Together, this "double delegation" creates a significant risk that sub-majorities of Congress will ultimately direct agency implementation of statutes in a way not only unforeseen by the enacting majority, which expresses its preferences in law, but also unapproved by the current majority due to imperfect control over committees.1 We call the former problem "disjointed majoritarianism"2 because it arises when congressional majorities shift over time. Playing off Alexander Bickel's famous characterization of the judiciary, we call the latter problem the sub-majoritarian difficulty.3 In this Article, we challenge the undifferentiated view of congressional control over delegated power, which assumes that oversight committees will enforce the wishes of a congressional majority.4 Our argument arises against the backdrop of three decades of debate over whether agencies are sufficiently accountable to Congress. While some scholars argue that Congress effectively controls agency discretion,5 others insist that agencies remain substantially autonomous despite congressional efforts to rein them in.6 The worry animating this scholarship is that agencies, insulated from direct electoral sanction and equipped with informational advantages their overseers lack, will drift from their statutory obligations out of self-interest, vulnerability, or ineptitude.7 To mitigate this risk, Congress relies heavily on its committees. Because members of these committees are members of, and deputies for, the larger Congress, commentators tend to treat them as if the two sets of preferences perfectly align. As a result, when an agency is accused of being out of control or deemed a runaway, the general assumption is that the impugned agency has defied both its oversight committees and the larger Congress those committees represent. Further, commentators tend not to differentiate between the wishes of the enacting majority on the one hand, and the preferences of later Congresses or later committees on the other. The result is a tendency to conflate the interests of the different principals with the preferences of the members of congressional committees charged with agency oversight. We believe there may be an intertemporal competition between the principals and agents in this scenario that has yet to be fully explored. Specifically, the demand for agency fidelity to Congress raises the potential for competition among at least three principals: the enacting majority, the current majority, and the current members of oversight committees. In our view, Congress is best viewed as a collection of rivals who vie for control over power delegated to agencies. …