The Congressional Bureaucracy
The Congressional Bureaucracy Jesse M. Cross Abbe R. Gluck CSAS Working Paper 20-23 First Branch, Second Thoughts — What Is Congress’s Proper Role in the Administrative State? Article The Congressional Bureaucracy Jesse M. Cross* & Abbe R. Gluck** Introduction Congress has a bureaucracy. Legal scholarship, judicial discourse, and doctrine about Congress and statutes have focused almost entirely on elected members of Congress and the ascertainability of their purported intentions about policymaking and statutory language. In recent years, we and others have broadened that perspective, with new scholarship about the on-the-ground realities of the congressional drafting process--including the essential role that staff plays in that process--and have argued the relevance of those realities for theory and doctrine.1 Here we go deeper. This Article goes beyond our previous accounts of partisan committee staff, congressional counsels, and other select staff offices to introduce the broader concept of what we call Congress’s bureaucracy. The congressional bureaucracy is the collection of approximately a dozen nonpartisan offices that, while typically unseen by the public and * Assistant Professor, University of South Carolina School of Law. ** Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School. Soren Schmidt, Yale Law School Class of 2020, was instrumental in working as our partner for the first draft of this article, including doing the first round of interviews and working with us to write the first draft. We are grateful to Douglas Elmendorf, Bill Eskridge, Sherry Glied, Ed Grossman, Rick Hills, Anne Joseph O’Connell, Nick Parrillo, George Yin, Kevin Kosar, Douglas Holtz-Eakin, Nina Kohn, Josh Chafetz, participants at the NYU Public Law Workshop, faculty workshops at the University of North Carolina, Seton Hall and Yale law schools, participants at the 2020 Legislation Works-in-Progress Roundtable, and Yale Law School students Josh Feinzig, Sumer Ghazala, Hilary Higgins, Jade Ford, and Natasha Khan.
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