Into the Void

The GAO's Role in the Regulatory State

January 21, 2021

Download this Journal Article (SSRN/American University Law Review)


Abstract

The study of Congress largely focuses on its members, committees, and leaders. Meanwhile, the study of federal agencies tends to focus on those that fall within the executive branch. But many agencies and institutions exist to support Congress, and administrative law and political science scholarship has largely overlooked their internal operations. Far more than ministerial, some of these agencies have the ability to shape policy in very meaningful ways. They also have their own institutional interests distinct from the legislators they serve. As instruments of Congress, though, these agencies are generally exempt from the Administrative Procedure Act and a host of other “good government” statutes that govern agency conduct. This does not mean that they operate in a lawless fashion. Instead, other statutes and internal norms guide their conduct. This Article suggests what we might learn from closer study of these understudied agencies.

One example of such an agency is the U.S. Government Accountability Office (GAO). Known mostly for its role as an auditor, the GAO has expanded its activities over time. As part of this expansion, the GAO built on its prior practice of offering legal opinions and decisions on appropriations matters to become a referee in an increasingly important area of the administrative state: issuing legal opinions on which agency actions are “rules” under the Congressional Review Act (CRA). The significance of these opinions, which are not binding as a matter of law, has grown as legislators use them strategically in regulatory politics. The full outcome of the Senate races in the 2020 election, which was not yet available when this Article went to press, will inform near-term use of the CRA to disapprove rules. Whether CRA disapproval is a potent tool in 2021 or not, we can expect legislators to continue to request the GAO’s legal opinions in strategic ways.

This Article examines how Congress has used the GAO’s legal opinion function to expand the application of the CRA. Part I describes congressional agencies to shed light on the wide array of functions that they serve and to highlight one in particular: the GAO. Part II explains the CRA, the statute that allows Congress to disapprove certain rules using fast-track procedures. Part III describes the significance of the GAO’s CRA legal opinions. Part IV sketches a strikingly wide variety of policy implications of this phenomenon and suggests areas for future study