1. Respectively, the Environmental Protection Agency, the Food and Drug Administration, and the Occupational Safety and Health Administration.

2. W. F. Willoughby, Principles of Public Administration 11 (Washington: Institute for Government Research, 1927).

3. Federalist, no. 47 (James Madison).

4. City of Arlington v. Federal Communications Commission, 569 U.S. 290 (2013).

5. Elena Kagan, “Presidential Administration,” Harvard Law Review 114, no. 8 (June 2001): 2245, 2246.

6. Bowsher v. Synar, 478 U.S. 714 (1986). “That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured … to provide avenues for the operation of checks on the exercise of governmental power.”

7. Federalist, no. 51 (James Madison).

8. For dueling and engaging contemporary histories of the admin­istrative state, compare Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107, no. 6 (April 1994): 1231 with Gillian Metzger, “1930s Redux: The Administrative State Under Siege,” Harvard Law Review 131, no. 1 (November 2017): 1.

9. Wong Yang Sung v. McGrath, 339 U.S. 33, (1950). Describing historical criticisms of administrative policymaking.

10. James M. Landis, The Administrative Process (New Haven, CT: Yale University Press, 1938). “In terms of political theory, administrative process springs from the inadequacy of a simply tripartite form of government to deal with modern problems.”

11. 81 Cong. Rec. 187 (1937).

12. The President’s Committee on Administrative Management, Administrative Management in the Government of the United States (Washington: Government Printing Office, 1937), p. 30.

13. Administrative Procedure Act, Pub. L. No. 79–404, 60 Stat. 237, 5 U.S.C. §§ 500–504 (1946).

14. Christopher J. Walker, “The One Time I Agreed with Ian Millhiser (on Constitutional Law, No Less!),” Notice & Comment (blog), Yale Journal on Regulation, March 6, 2018.

15. 5 U.S.C. §§ 701–6.

16. 5 U.S.C. § 553.

17. 5 U.S.C. §§ 554, 557.

18. Legislative Reorganization Act of 1946, Pub. L. No. 79–601, Title IV, 60 Stat. 812 (1946); and 28 U.S.C. § 1346 (1946).

19. See generally, Henry Cohen and Vanessa K. Burrows, Federal Tort Claims Act (Washington: Congressional Research Service, 2007).

20. Legislative Reorganization Act of 1946; and 5 U.S.C. §§ 551–9, 701–6, 1305, 3344, 4301, 5335, 5372, 7521.

21. David H. Rosenbloom, Building a Legislative‐​Centered Public Administration: Congress and the Administrative State, 1946–1999 (Tuscaloosa: University of Alabama Press, 2002), p. 63.

22. George E. Outland, “We Must Modernize Congress,” Reader’s Digest, February 1945, pp. 35–38.

23. “U.S. Congress: It Faces Great New Tasks with Outworn Tools,” Life, June 18, 1945, pp. 71–85.

24. George B. Galloway, “The Operation of the Legislative Reorganization Act of 1946,” American Political Science Review 45, no. 1 (March 1951): 42.

25. Legislative Reorganization Act of 1946 §§ 102, 121. See also Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington: Brookings Institution, 1990); Robert Byrd, The Senate 1789–1989: Addresses on the History of the United States Senate, ed. Mary Sharon Hall, vol. 1 (Washington: Government Printing Office, 1989), pp. 548–9; and Lawrence C. Dodd and Richard L. Schott, Congress and the Administrative State (Upper Saddle River, NJ: Prentice Hall, 1979), pp. 86–87.

26. Galloway, “The Operation of the Legislative Reorganization Act,” p. 42.

27. Legislative Reorganization Act of 1946 § 202. See also Dodd and Schott, Congress and the Administrative State, p. 72; Byrd, The Senate 1789–1989, p. 549; and Galloway, pp. 53–54.

28. Legislative Reorganization Act of 1946 § 136. See also David H. Rosenbloom, “1946: Framing A Lasting Congressional Response to the Administrative State,” Administrative Law Review 50, no. 1 (Winter 1998): pp. 173, 179.

29. Rosenbloom, Building a Legislative‐​Centered Public Administration.

30. Legislative Reorganization Act of 1946 § 203.

31. Christopher J. Deering and Steven S. Smith, Committees in Congress (Washington: CQ Press, 1997), pp. 30–33; and Dodd and Schott, Congress and the Administrative State, pp. 65–71.

32. Deering and Smith, Committees in Congress, p. 27.

33. Deering and Smith, pp. 31–32.

34. Dodd and Schott, Congress and the Administrative State, pp. 235–40.

35. See generally Jonathan H. Adler and Christopher J. Walker, “Delegation and Time,” C. Boyden Gray Center for the Study of the Administrative State Working Paper no. 19–14, May 2, 2019. Part III of the paper explains reauthorization and how it has fallen into disuse.

36. Allen Schick, “Congress and the ‘Details’ of Administration,” Public Administration Review 36, no. 5 (September/​October 1976): 525.

37. Harold H. Bruff and Ernest Gellhorn, “Congressional Control of Administrative Regulation: A Study of Legislative Vetoes,” Harvard Law Review 90, no. 7 (May 1977): 1369, 1380. “The usual process is for one or more committees or subcommittees to hold hearings and to report to the full house, which debates the matter before a final vote.”

38. Arthur S. Miller and George M. Knapp, “The Congressional Veto: Preserving the Constitutional Framework,” Indiana Law Journal 52, no. 2 (Winter 1977): 367, 373.

39. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (dissenting).

40. Legislative Reorganization Act of 1970, Pub. L. No. 91–510, 84 Stat. 1156 (1970). “… each standing committee shall review and study, on a continuing basis, the application, administration, and execution of those laws or parts of laws, the subject matter of which is within the jurisdiction of that committee.” (emphasis added)

41. Congressional Budget and Impoundment Control Act of 1974, Pub. L. 93–344, 88 Stat. 297, 2 U.S.C. §§ 601–688.

42. Congressional Budget and Impoundment Control Act of 1974, Title II; and Deering and Smith, Committees in Congress, pp. 39–40.

43. Congressional Budget and Impoundment Control Act of 1974, Title VI.

44. John Siciliano, “House Republicans Vote to End Climate Change Hearing after Only Two Democrats Show Up,” Washington Examiner, February 26, 2019.

45. See, e.g., Olivia Messer, “Trey Gowdy, Who Led 11‐​Hour Benghazi Hearing, Declares Public Congressional Hearings ‘Utterly Useless,’” The Daily Beast, March 4, 2019.

46. Congressional Budget Office, Unauthorized Appropriations and Expiring Authorizations (Washington: Government Printing Office, January 15, 2016). Calculating that $300 billion worth of administrative programs are run on virtual autopilot.

47. William Yeatman, “Confusing EPA Budget Process Calculated to Resist Meaningful Oversight,” OpenMarket (blog), Competitive Enterprise Institute, May 22, 2017.

48. William Yeatman, “EPA’s Clean Power Plan Lies Undermine Congressional Oversight,” OpenMarket (blog), Competitive Enterprise Institute, December 27, 2016.

49. Chadha, 462 U.S. 919.

50. Deering and Smith, Committees in Congress, p. 21.

51. Burdett A. Loomis and Wendy J. Schiller, The Contemporary Congress, 4th ed. (Lanham, MD: Rowman & Littlefield, 2004), pp. 86–87 and 93, Table 5–3. Observing that the proportion of partisan roll calls—i.e., how often a majority of Democrats voted against a majority of Republicans—was 48 percent in both the House and Senate in 1975. In 1985, it was 61 percent in the House and 50 percent in the Senate. And in 1995, it was 73 percent and 69 percent, respectively.

52. John H. Aldrich and David W. Rohde, “Congressional Committees in a Continuing Partisan Era,” in Congress Reconsidered, 9th ed., eds. Lawrence C. Dodd and Bruce I. Oppenheimer (Washington: CQ Press, 2009), p. 143.

53. The key change was the reconstitution of the Rules Committee’s authority to control legislative action. The Rules Committee now operates as an agent of House leadership.

54. “The Republican ‘Contract with America,’” U.S. House of Representatives, 1994, https://web.archive.org/web/19990427174200/http://www.house.gov/house/Contract/CONTRACT.html.

55. Deering and Smith, Committees in Congress, p. 49, Table 2–2. Listing the changes ushered in by majority party in House in 104th Congress.

56. Aldrich and Rohde, “Congressional Committees in a Continuing Partisan Era,” p. 217.

57. Loomis and Schiller, The Contemporary Congress, p. 100.

58. Loomis and Schiller, p. 101.

59. Examples include the abandonment of the filibuster and “blue slip” procedures for judicial nominees.

60. Loomis and Schiller, The Contemporary Congress, p. 174.

61. Kenneth A. Shepsle, “The Changing Textbook Congress,” in Can the Government Govern?, eds. John E. Chubb and Paul E. Peterson (Washington: Brookings Institution Press, 1989), p. 238.

62. The House passed a resolution of disapproval of President Trump’s emergency declaration to secure funding to build a wall between the United States and Mexico. The vote was 245–182, with 13 Republicans voting with Democrats to pass the measure. The resolution passed the Senate by a 59–41 vote, with 12 Republicans joining the Democrat caucus. Because most Republican lawmakers sided with Trump, there were insufficient votes in either chamber to overcome the president’s veto.

63. Barack Obama, Remarks by the President in the State of the Union Address, February 12, 2013. “But if Congress won’t act soon to protect future generations, I will. (Applause.)”

64. Shepsle, “The Changing Textbook Congress,” pp. 250–51.

65. Deering and Smith, Committees in Congress, p. 162.

66. Deering and Smith, pp. 48–51.

67. Norman J. Ornstein et al., Vital Statistics on Congress (Washington: Brookings Institution Press, April 23, 2014), Table 5–5.

68. Deering and Smith, Committees in Congress, p. 50.

69. Ornstein et al., Vital Statistics, Table 5–8.

70. Ornstein et al., Table 5–5.

71. Lauren Bowman and Romina Boccia, “A Billion Dollars for Propaganda and No Oversight,” Foundation for Economic Education, November 4, 2016.

72. See generally Eloise Pasachoff, “The President’s Budget as a Source of Agency Policy Control,” Yale Law Journal 125, no. 8 (June 2016): 2182. Describing how president’s exercise control over the administrative state through the budget process.

73. Curtis W. Copeland, “The Presidential‐​Congressional Power Imbalance in Rulemaking,” in When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, ed. Mort Rosenberg (Washington: The Constitution Project, 2017), p. 236.

74. Kagan, “Presidential Administration,” p. 2285.

75. Jim Tozzi, “OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding,” Administrative Law Review 63, Special Edition: OIRA Thirtieth Anniversary Conference (2011): 44–50; and Curtis W. Copeland, “The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking,” Fordham Urban Law Journal 33, no 4 (2006): 1257, 1264.

76. Exec. Order No. 11,821, 39 Fed. Reg. 41501 (November 29, 1974).

77. Exec. Order No. 12,044, 43 Fed. Reg. 12661 (March 24, 1978).

78. Exec. Order No. 12,291, 46 Fed. Reg. 13193 (February 19, 1981).

79. Exec. Order No. 12,498, 50 Fed. Reg. 1036 (January 8, 1985).

80. Although the Office of Information and Regulatory Affairs (OIRA) statutory mandate is to manage federal paperwork by reviewing information collection requests, President Reagan broadened the newly created body’s duties to include regulatory review. Future presidents followed suit, and Congress has acquiesced by funding OIRA and confirming the director of OIRA.

81. Congress created OIRA with passage of the Paperwork Reduction Act in 1980.

82. Copeland, “The Presidential‐​Congressional Power Imbalance in Rulemaking,” p. 240.

83. See generally, William G. Howell and David E. Lewis, “Agencies by Presidential Design,” The Journal of Politics 64, no. 4 (November 2002): 1095–1114.

84. Originally, Exec. Order No. 12,291 required that “potential benefits to society for the regulation outweigh the potential costs to society.” President Clinton’s Exec. Order No 12,866 § 1, 58 Fed. Reg. 51735 (October 4, 1993) called for regulations that “maximize net benefits.” And Obama’s Exec. Order 13,563 § 1, 3 C.F.R. 13563 (January 18, 2011), which called for regulatory benefits that “justify” costs.

85. Exec. Order 12,866 § 7.

86. Exec. Order 12,866 § 4.

87. John D. Graham, “Saving Lives through Administrative Law and Economics,” University of Pennsylvania Law Review 157, no. 2 (2008): 268n460.

88. Copeland, “The Presidential‐​Congressional Power Imbalance in Rulemaking,” p. 242.

89. Exec. Order 13,579, 3 C.F.R. 13579 (July 11, 2011).

90. Bridget C. E. Dooling, “OIRA Sends a Smoke Signal on Independent Agencies,” Notice & Comment (blog), Yale Journal on Regulation, August 23, 2018.

91. Kenneth Culp Davis, “Presidential Control of Rulemaking,” Tulane Law Review 56, no. 3 (April 1982): 849.

92. Cass Sunstein, “The Office of Information and Regulatory Affairs: Myths and Realities,” Harvard Law Review 126, no. 7 (May 2013): 1838, 1839. “Even among close observers—in the media, in the business and public interest communities, and among academics, including professors of law—the role of OIRA and the nature of the OIRA process remain poorly understood.”

93. For thoughtful criticisms of OIRA, including the agency’s alleged lack of transparency, see Lisa Heinzerling, “Inside EPA: A Former Insider’s Reflections on the Relationship between the Obama EPA and the Obama White House,” Pace Environmental Law Review 31, no. 1 (Winter 2014): 325.

94. Executive Office of the President, Fiscal Year 2018 Congressional Budget Submission (Washington: Executive Office of the President, 2017), p. 13.

95. This description of OIRA’s operational workings is gleaned from Sunstein, “Myths and Realities,” p. 1845.

96. Exec. Order 12,866 § 3(f). Although there are other factors to consider, these are the primary considerations.

97. Sunstein, “Myths and Realities,” p. 1840.

98. Exec. Order 12,991 § 3, 3 C.F.R. 12991 (March 6, 1996).

99. Sunstein, “Myths and Realities,” p. 1847.

100. Budget and Accounting Act of 1921, Pub. L. 67–13, 42 Stat. 20, Sec. 312(a).

101. Chadha, 462 U.S. 919.

102. 5 U.S.C. §§ 801–808 creates a fast‐​track mechanism for Congress to check agency rules, including a bypass of the Senate filibuster.

103. Prior to the 115th Congress, only one Congressional Review Act disapproval resolution survived the president’s veto. See “Congressional Review Act Resolutions in the 115th Congress,” Coalition for Sensible Safeguards.”

104. Truth in Regulating Act of 2000, Pub. L. 106–312, 114 Stat. 1248–50 (October 17, 2000).

105. 166 Cong. Rec. H8706 (2000).

106. Rosenberg, ed., When Congress Comes Calling, p. 176.

107. For an incisive analysis of contemporary congressional politics over domestic regulation, see Philip A. Wallach, Losing Hold of the REINS: How Republicans’ Attempt to Cut Back on Regulations Has Impeded Congress’s Ability to Assert Itself,” Brookings Institution, May 2, 2019.

108. The Congressional Office of Regulatory Analysis Creation Act (H.R. 1704) passed the House Committee on Government Reform and Oversight and the House Judiciary Committee. The Congressional Accountability for Regulatory Information Act of 1999 (S. 1198) passed the Senate Committee on Governmental Affairs.

109. Committee on Government Reform and Oversight, Rept. 105–441 Part 2, Minority Views on H.R. 1714, June 3, 1998, p. 23 (“the appointment process [for the new office] is partisan”); and Committee on the Judiciary, Rept. 105–441 Part 1, Dissenting Views to H.R. 1714, March 13, 1998, p. 18 (objecting to the “supposedly nonpartisan” composition of the new office’s leadership).

110. Truth in Regulating Act of 2000, Sec. 4.

111. Money and Finance, Pub. L. 97–258, 96 Stat. 877, 31 U.S.C. § 703(a)(1) (September 13, 1982).

112. 5 U.S.C. § 801(a) requires the Government Accountability Office (GAO) to perform an “assessment” of the rule under consideration. See Rosenberg, ed., When Congress Comes Calling, p. 168, describing GAO’s narrow interpretation.

113. Created in 1926, the nonpartisan Joint Committee on Taxation has an experienced professional staff of PhD economists, attorneys, and accountants “who assist Members of the majority and minority parties in both houses of Congress on tax legislation.” See “Overview,” About Us, Joint Committee on Taxation.

114. See Exec. Order No. 12,291 and accompanying text. The extent to which the Constitution permits congressional regulation of the removal of Article II officers (inferior and principal) is currently in flux. In 2010, for example, the Supreme Court held that Congress may not afford removal protections to inferior officers at independent agencies. See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010). In the present term, the court will hear arguments in Seila Law LLC v. Consumer Financial Protection Bureau, which involves a challenge to Congress’s constitutional authority to regulate the removal of the principal officer who heads the Consumer Financial Protection Bureau. See Scott A. Keller, Noah R. Mink, and Ilya Shapiro, “Seila Law LLC v. Consumer Financial Protection Bureau,” Legal Briefs, Cato Institute, July 29, 2019.

115. For more on the Regulations from the Executive in Need of Scrutiny (REINS) Act, see Eric Boehm, “Rand Paul’s REINS Act Finally Makes It to Senate Floor,” Reason, May 17, 2017.

116. Tamara Keith, “Wielding a Pen and a Phone, Obama Goes It Alone,” NPR, January 20, 2014.

117. Exec. Order No. 13,771, 82 Fed. Reg. 9339 (January 30, 2017).

118. See Clyde Wayne Crews, “The 2019 Unconstitutionality Index,” OpenMarket (blog), Competitive Enterprise Institute, December 31, 2018.

119. Bowsher v. Synar, 478 U.S. 714.