Document Type
Article
Publication
Administrative Law Review
Year
2018
Citation Information
Laura E. Dolbow, Agency Adherence To Legislative History, 70 Admin. L. Rev. 569 (2018), available at https://scholar.law.colorado.edu/faculty-articles/1764.
Abstract
Every year, Congress gives hundreds of specific directions to agencies through legislative history. Amidst debates about how agencies use legislative history as an interpretive tool to implement directives contained in statutory text, there is little analysis on how agencies respond to directives contained in the legislative history itself. How agencies respond to directives in legislative history, such as committee reports, provides important information about interactions between agencies and Congress. This Article explores how congressional committees leverage legislative history to direct agency action by studying instructions to the Food and Drug Administration (FDA) in appropriations committee reports. Based on this study, I suggest that agencies follow report instructions with high fidelity, though they retain flexibility in their responses. Moreover, appropriations committees use legislative history to monitor details about the substance of agency action. The influence of congressional committees over the content of agency action affects negotiating dynamics between Congress and agencies, which has important implications for understanding the relationship between Congress and agencies. Congressional oversight through legislative history can promote efficient oversight, public participation, and political accountability in agency actions, particularly in the guidance document development process. However, delegating such oversight to the committee level sparks concerns about committee bias and interest group capture, emphasizing the need for transparency.
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