A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.
To begin that cross-disciplinary conversation, this Article turns to five themes in the executive-branch literature. These are: (i) the dual-allegiance problem, (ii) bureaucratic resistance, (iii) dual advising-adjudicating roles, (iv) agency capture, and (v) comparative understandings of the judiciary. In each case, theories developed in the executive branch context enrich our understanding of the congressional bureaucracy, while new knowledge about the congressional bureaucracy also forces revisions to those executive-branch theories. In many cases, the congressional bureaucracy also reveals new governance solutions in our tripartite system—solutions that are overlooked when bureaucracy scholarship is confined to studies of a single branch. Through an exploration of these and other lessons, the Article illustrates the many possibilities inherent in a new cross-disciplinary dialogue on the role of bureaucracy in our federal system.
Jesse M. Cross, Federal Bureaucratic Studies, 80 Wash. & LEE L. REV. 229 (2023).