In Hayek Lecture, Judge Steven Menashi considers the impact of Congress’s declining role in administrative policymaking

At the 17th annual Friedrich A. Von Hayek Lecture on November 16, Steven Menashi, a judge on the US Court of Appeals for the Second Circuit, spoke about the impact of Congress’s declining role in administrative policymaking. Menashi argued that the transition to administrative governance has eroded the deliberative process, and discussed ways to reinstate foundational legislative values through a range of reform measures.

Steven Menashi
Steven Menashi

An expert on administrative law and civil procedure, Menashi has served on the Second Circuit since 2019. He held positions as acting general counsel at the US Department of Education and as special assistant and associate counsel to President Donald Trump. A former partner at Kirkland & Ellis, Menashi also spent three years as a research fellow at NYU Law and the Opperman Institute for Judicial Administration between 2013 and 2016. 

Selected remarks from Judge Steven Menashi:

“A prominent thought has been that if the courts were less indulgent of agency policymaking, it would force Congress to legislate more frequently, more specifically and on a wider range of subjects. I’m just not sure that’s correct.… Congress has deep structural reasons and incentives for relying on agency policy-making and for engaging in activities such as oversight at the expense of its legislative role.” 

“While it still makes sense to encourage Congress to legislate, we might at the same time consider how to make the administrative process better rather than worse. Making the administrative state better in this context means seeking to include…greater representation of the public interest and opportunities for public deliberation that we’ve lost through Congressional decline.” 
“First, I would argue that critics of Congressional decline should stop deriding Congressional oversight as performative, messaging, politically partisan, or a distraction from legislation. Agencies respond to incentives, and oversight that engages the public and draws public attention changes agency incentives in the direction of greater public accountability. Second, administrative law practitioners should think of Congressional oversight as a means of redress for clients adversely affected by agency action…. There’s no reason why lawyers with extensive knowledge of agency behavior should not actively petition the Congressional committees charged with oversight to rein in possible excess.... Third, Congress could reform its staff committee staffing structure to extend the reach of Congressional oversight.… If we think that oversight is a way for Congress to make policymaking more democratically accountable, Congress might consider democratizing its committee staff structure.” 

Posted on January 16, 2024