The Congressional Bureaucracy

Abstract

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.

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 the congressional bureaucracy. The congressional bureaucracy is the collection of approximately a dozen nonpartisan offices that, while typically unseen by the public and largely ignored by courts and practicing lawyers, provides the specialized expertise that helps make congressional lawmaking possible. In the process, the bureaucracy furthers Congress's own internal separation of powers and safeguards the legislative process from executive and interest-group encroachment.