The Investigative State
Open AccessLegislative power is typically conceived as the power of Congress to regulate private conduct through written rules. But legislative power involves investigations, some legally enforceable and others not. Congress investigates presidents, Cabinet officials, regulations and programs; and Congress investigates businesses and private citizens. Congress also sets rules governing its proceedings, creates committees with jurisdiction over policy issues as well as creates committees tied to party leadership. Congress relies on committees and the applicable floors of each house to adjudicate questions of impeachment; to approve nominees; or to adjudicate private claims. Congress holds executive officials and private citizens in contempt and can even direct the Sergeant of Arms to arrest those individuals who refuse to comply with a congressional demand. These are all legislative powers exercised in addition to the power to write rules and do not depend upon bicameral and presidential approval. Yet the literature examining both delegation of legislative power and congressional oversight of the administrativestate focus explicitly on delegating, and overseeing, rulemaking power. Political scientists and administrative law scholars have theorized that Congress delegates due to the expertise agencies have in crafting public policy and exercises oversight to curb ideological drift by the bureaucracy from Congress’s policy preferences. In this dissertation, I marshal nearly 75 years of congressional hearing data to argue that given Congress’s incentives to delegate, Congress will delegate its oversight powers. I find strong evidence that this is precisely what Congress did in creating Inspector General offices throughout the executive branch. The empirical results motivate broader consideration of the political and legal nature of legislative power and delegation while introducing a strategy for providing empirical context to theoretical debates concerning the separation of powers, the nondelegation doctrine, and the scope of executive power.
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